The History and Growth of Judicial Review, Volume 2: The G-20 Civil Law Countries 9780190075736, 9780190075767, 9780190075743

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The History and Growth of Judicial Review Volume 2

The History and Growth of Judicial Review Volume 2:  The G-​20 Civil Law Countries S T EV E N G OW C A L A B R E SI

1

3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Steven Gow Calabresi 2021 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Calabresi, Steven Gow, editor. Title: The history and growth of judicial review /​Steven Gow Calabresi. Description: New York : Oxford University Press, 2021. | Includes bibliographical references and index. | Contents: Volume 1. The G-​20 common law countries and Israel—​Volume 2.   The G-​20 civil law countries. Identifiers: LCCN 2019054917 (print) | LCCN 2019054918 (ebook) |   ISBN 9780190075774 (v. 1; hardback) | ISBN 9780190075736 (v. 2 ; hardback) |   ISBN 9780190075798 (v. 1 ; epub) | ISBN 9780190075750 (v. 2 ; epub) |   ISBN 9780190075804 (v. 1 ; online) | ISBN 9780190075767 (v. 2 ; online) |   ISBN 9780190075781 (v.1 ; updf) | ISBN 9780190075743 (v.2 ; updf) Subjects: LCSH: Judicial review. Classification: LCC K3175 .H57 2020 (print) | LCC K3175 (ebook) | DDC 347/​.012—​dc23 LC record available at https://​lccn.loc.gov/​2019054917 LC ebook record available at https://​lccn.loc.gov/​2019054918 DOI: 10.1093/oso/9780190075736.001.0001 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com.

These two books are dedicated to four great Yale University professors of comparative constitutional law and politics: Bruce Ackerman Mirjan R. Damaška Juan J. Linz and David R. Mayhew

Contents Acknowledgments

xiii

Introduction: The Birth and Growth of Judicial Review in the Civil Law World

1

Chapter 1

The Civil Law Legal Tradition

9

Chapter 2

The Concentrated and Hybrid Models of Judicial Review 27

Chapter 3

The Federal Republic of Germany

Chapter 4

Japan

115

Chapter 5

The Republic of Italy

133

Chapter 6

The Republic of France

157

Chapter 7

The Republic of Korea

189

Chapter 8

The Federative Republic of Brazil

201

Chapter 9

Mexico

231

Chapter 10

Indonesia

251

Chapter 11

The European Union and the Council of Europe

267

39

Conclusion: The German Model and Gouvernement des Juges 315 Index

319

Detailed Contents Acknowledgments

Introduction: The Birth and Growth of Judicial Review in the Civil Law World

xiii

1

Chapter 1 The Civil Law Legal Tradition I. The History of the Civil Law Tradition II. The Court Systems in Civil Law Countries

9 11 25

Chapter 2 The Concentrated and Hybrid Models of Judicial Review I. The History of the Concentrated Model of Judicial Review II. The Hybrid Model of Judicial Review III. Conclusion

27 27 32 37

Chapter 3

39 42







The Federal Republic of Germany

I. History A. B. C. D. E. F.

The German Empire The Weimer Republic Allied Military Occupation of Germany Writing the Basic Law Bicameralism in the Federal Republic of Germany The Interpretation of the Basic Law by the Constitutional Court G. Amending the Basic Law H. Growth in Federal Power in Germany

II. The German Constitutional Court and Its Case Law

45 45 48 54 64 67 68 71

73

A. Federalism Umpiring 76 1. The Southwest State Case 76 B. Foundational Importance of Federalism in the Basic Law 79 1. Early Federalism Cases Decided by the German Constitutional Court 84 2. Modern Federalism Case Law of the German Constitutional Court 86 C. Separation of Powers Umpiring 93 1. The Non-​Delegation Doctrine in Germany 93 2. Parliamentary Dissolution 97 D. Individual Fundamental Rights and the Basic Law 99 1. Lüth’s Case 100 2. Other Modern Individual Rights Cases 103

x  Detailed Contents



E. The Political Question Doctrine in Germany F. Balancing Rights and Duties in Germany

III. What Explains the Origins and Growth of German Judicial Review?

108 111

112

Chapter 4 Japan I. History and Constitution II. The Practice of Judicial Review in Japan III. Why Has Judicial Review Failed to Take Root in Japan?

115 115 124 127

Chapter 5

133 135







Chapter 6



The Republic of Italy I. History A. B. C. D. E. F. G.

Italian Constitutionalism before 1848 Italian Unification and the Statuto Albertino Fascism and the Resistance Adopting the Constitution Bicameralism and the Italian Senate Regionalism in Italy The Constitutional Amendment Process

II. Constitution and Case Law

A. The Constitution and Bill of Rights B. Foundational Judicial Review Case C. Bill of Rights Case Law

III. What Explains the Origins and Growth of Judicial Review in Italy?

The Republic of France

I. History A. B. C. D.

From Absolute Monarchy to the Reign of Terror From 1815 to 1851: Failure to Democratize The Third and Fourth Republics The Fifth Republic and the Return of General De Gaulle

A. B. C. D. E. F.

Presidential Lawmaking Power The National Assembly The French Senate The Constitutional Council Sovereignty and the Amendment Process French Decentralization and Federalism

II. The Constitution of the Fifth Republic

135 138 139 141 144 145 148

149

150 151 152

155

157 158 158 161 161 164

165 166 166 167 168 168 169



III. Judicial Review in France

172



IV. Important Case Law

181

A. The Historical French View on Judges B. Judicial Review in France Since 1958 C. Future Reforms A. Abortion B. Equality and Women C. Hate Speech

172 173 180 181 182 183

Detailed Contents  xi



D. Religion 1. Law of Dec. 9, 1905 On the Separation of Church and State J.O. E. Protections Against the Taking of Private Property

183 184 185

V. Why Did Judicial Review Originate and Grow in France? 185

Chapter 7 The Republic of Korea I. History, Constitution, and Amending Process II. Judicial Review, Bill of Rights, and Equality Guarantee III. The Origins and Growth of Judicial Review in South Korea

189 189 193

Chapter 8 The Federative Republic of Brazil I. History II. Institutions of the Government

201 201 206



A. The President B. The Bicameral National Congress C. The Supreme Federal Tribunal D. Federalism E. Bills of Rights F. Amendment Procedure

198

206 207 208 210 211 212



III. Judicial Review in Brazil

212



IV. Origins of Judicial Review in Brazil

228

A. Foundational Cases B. Bill of Rights Cases

214 215

Chapter 9 Mexico I. A Brief History of Mexico and Its Courts II. The Origins of Independent Judicial Review in Mexico III. The Post-​1995 Growth of Mexican Judicial Review

231 231 235 238

Chapter 10 Indonesia I. History II. A Short History of Judicial Review in Indonesia

251 251 256





A. Foundational Cases B. The Separation of Powers and Bicameralism C. Federalism D. The Mexican Bill of Rights and Unenumerated Rights E. Freedom of Expression F. Freedom of Religion and Laïcité G. Criminal Procedure H. Unconstitutional Searches and Seizures I. Election Law and Militant Democracy J. Conclusion

A. The Separation of Powers B. Federalism

238 241 242 243 245 246 246 247 248 248

256 258

xii  Detailed Contents

Bill of Rights and Unenumerated Rights The Death Penalty in Indonesia Equality Under the Law Freedom of Expression Freedom of Religion

259 260 261 262 262

III. The Origins and Growth of Judicial Review in Indonesia IV. Conclusion

263 265

Chapter 11 The European Union and the Council of Europe I. The European Union and the European Court of Justice

267 269





C. D. E. F. G.







II. III. IV. V.

A. Institutions and Structure B. History of the EU C. History of the ECJ

The Emergence of Judicial Review in the European Union Expansion of Judicial Review in the European Union Why Did Judicial Review Originate and Grow in the EU? The Council of Europe, the European Convention on Human Rights and Freedoms, and the European Court of Human Rights A. History of the ECHR and of the ECtHR B. The ECtHR and Its Jurisdiction in 2021 C. Case Law 1. Judicial Independence 2. Freedom of Expression That Incites Lawless Action 3. Freedom of Expression and Hate Speech 4. Freedom of Religion and Proselytizing 5. Freedom from Torture or Inhuman or Degrading Treatment 6. The Right to Silence and Not to Incriminate Oneself 7. Property Rights and Regulatory Takings 8. Right to Respect for Private and Family Life 9. The Right of Incarcerated Prisoners to Vote in Elections 10. Freedom of Assembly and Association 11. The Convention and the Rights of Citizens in the Civil Service 12. Conclusions on the ECtHR’s Case Law

269 273 279

280 283 291 294

296 296 302 302 302 303 304 305 306 307 308 309 310 311 312

VII. Explaining the Origins and Growth in Power of the Council of Europe and of the European Court of Human Rights

312

Conclusion: The German Model and Gouvernement des Juges

315

Index

319

Acknowledgments I want to begin by expressing my deep gratitude to Jasmine Owens who was my student in 2012 at Northwestern Pritzker School of Law, and who began this two volume book series with me as a third year law student doing a one year long senior research paper. We had many fun conversations, and she shared totally my interest in Comparative Constitutional Law and in the topic of these two books. By the end of the year we had an eighty page draft paper covering six or so jurisdictions and the origins of their systems of judicial review. Some of the words she wrote in 2012 are probably still in this book because I can no longer remember when in the last ten years every passage was added. Jasmine was a brilliant and easy person to work with, and I really enjoyed working with her on her senior essay. The project has percolated in my head for eight additional years now during which time I co-​edited an 1,800 page casebook entitled The U.S. Constitutional and Comparative Constitutional Law which gave me lots of material to add to this two volume series, which now covers seventeen jurisdictions. After eight years of writing and rewriting, and after going from an 80 page student paper to a 1,000 page manuscript without staying in touch with Jasmine since 2012, I concluded that I could not make her a co-​author of something which I had by then totally redone myself and in which I take controversial positions that she might not share. I say this with great reluctance because Jasmine’s enthusiasm and first draft definitely did help me get launched on this long project. Suffice it to say that Jasmine was more than just a research assistant on this project and that I will be eternally grateful to her for her help in getting me to finally write these two books as I have been meaning to do for a very long time! I owe a second debt of gratitude to Bradley Silverman, a former college student of mine at Brown University where he co-​edited with me my 1,800 page casebook. Bradley is also brilliant and is a wonderful friend. Some of his work on the casebook has found its way into these two books and for that I am very grateful. I am also grateful to him for getting the copyright permissions we needed to publish these two books—​an onerous but necessary task. With these two warm thank you’s complete, I now want to profusely thank my truly wonderful Deans, Jim Speta, Kim Yuracko and Dan Rodriguez of the Northwestern Pritzker School of Law, and Deans Heather Gerken and Robert Post of the Yale Law School, who supported my teaching and research both financially, and emotionally, over the last ten years. Special thanks are also due

xiv Acknowledgments to Professor Judith Resnick of the Yale Law School for including me in Yale Law School’s annual Global Constitutional Summit from which I have learned a great deal. Professor Resnick has been very patient over the years with my intense desire to ask as many questions of our guests as I possibly can and do. I also want to especially thank one of my two best friends,Yale Law Professor Akhil Reed Amar, who co-​taught comparative constitutional law with me, for five years at Yale, and who was indispensable to this project getting off the ground! Akhil gave me me my first chance to teach at Yale Law School, and I simply could not have written these two books without access to the brilliant foreign teachers and law students that Yale Law School offers in abundance. My other best friend (along with Akhil) is Gary Lawson, at Boston University School of Law, who has been an invaluable sounding board throughout the time I have worked on this project. I thank him from the bottom of my heart. He has given me countless hours of attention day and night and has been a pillar of support to me now for forty years! I would also like to thank, especially Monesha Mohandas, at Oxford University Press, for her patience, her skill in catching errors, and her wonderful editing of my text. This has been for my a superb editorial process for me, and Monesha, and her assistants at Oxford University Press made that happen! A special thanks is also due to the four Yale University faculty members who taught me comparative constitutional law and government and to whom this book is dedicated: Bruce Ackerman, Mirjan R. Damaška, Juan J. Linz, and David R. Mayhew. They all inspired in me a very deep love of this subject matter, and a belief in its tremendous importance to the future of mankind. My interest in Comparative Constitutional Law started when I  was an eighteen-​year-​old college student of Professor Linz’s in his summer school class in 1976 in Yale College on “The Crisis and Breakdown of Democracy in Weimar, Germany During the Interwar Years.” The opportunity to study with Juan Linz how it was that Adolf Hitler came to power through democratic means was an eye-​opening experience for me. Our seminar in the summer of 1976 consisted only of me and two political science graduate students, neither of whom ever spoke. The entire class was a dialogue between me and Professor Linz, who I really came to love and admire and whose memory I will always cherish. I saw him only once in his later life, when we served on a panel together at Yale Law School, and he was as brilliant, sparkling, and warm in his eighties as I had always remembered him to be. I continued to explore Comparative Government in the brilliant class on that subject, which I took from my good friend, Yale Political Science Professor, David R. Mayhew. Professor Mayhew was a resident fellow at Morse College, and I shared many meals with him there since Morse was my residential college, and I learned a huge amount in the process. Professor Mayhew was the first teacher who ever asked me to work as his research assistant, and I will never forget my

Acknowledgments  xv pleasure when he published some of what I had found in a footnote to one of his many books. I share with Professor Mayhew a love of our U.S. Constitution of checks and balances, and a strong belief in the deep wisdom in his brilliant book Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–​2002. He has been, and he remains, today, a true and stalwart good friend. I continued to explore Comparative Law at Yale Law School where I had the great good fortune to be a twenty-​four-​year-​old law student in Professor Mirjan Damaška’s class on an “Introduction to Comparative Law.” I took the class in part on the advice of my small group leader, and mentor, Yale Law School Professor Joseph Goldstein. I  loved Professor Damaška’s class, and his elegant explanation of the remarkable rediscovery and revival of Roman Law, in eleventh-​and twelfth-​century Italy, and I was fascinated by the differences between the Civil Law and the Common Law traditions of which I was previously unaware. When I was hired at Northwestern University School of Law and was asked what two lecture courses I wanted to teach in each semester of my first year on the faculty, I answered by saying Federal Jurisdiction and Comparative Law because I was so inspired by how they had been taught to me at Yale. I taught Comparative Private Law for twelve years at Northwestern Law School out of a brilliant casebook principally edited by Mary Ann Glendon, Comparative Legal Traditions: Text, Materials and Cases on Western Law. Professor Glendon’s casebook was brilliant, thought-​provoking, and it ultimately inspired me to write my own casebook entitled The U.S. Constitution and Comparative Constitutional Law (2016). While I have moved away from comparative private law and toward comparative constitutional law, my thinking on Comparativism, in general, is greatly shaped by Professor Glendon’s many books! The fourth and final person who inspired me to start teaching not just Comparative Law, but Comparative Constitutional Law was Yale Law Professor Bruce Ackerman, whose class on “Social Justice and the Liberal State” helped to inspire me to co-​found the Federalist Society when I  was a law student at Yale Law School in April 1982. Bruce, as we all called him, was brilliant, witty, a great conversationalist—​one of the best I have ever known—​and a really nice guy to boot. In the year 2000, Bruce did me the enormous favor of criticizing my writings on U.S.  presidential power through a comparative constitutional law lens in the pages of the Harvard Law Review. I  might never have started teaching and writing in comparative constitutional law, and have produced these two books you now have before you, had it not been for the publication of Bruce Ackerman’s law review article on: The New Separation of Powers. Since Akhil invited me to co-​teach at Yale Law School, I have had many fun, dinners, lunches, and conference discussions with Bruce. He extended me the highest of compliments by inviting me to co-​teach Comparative Constitutional Law with him during a semester when Akhil had a research leave. This was an invaluable introduction to his brilliant new book, Revolutionary Constitutions: Charismatic

xvi Acknowledgments Leadership and the Rule of Law (2019). It is an all-​time classic in the still nascent field of Comparative Constitutional Law. The theory of the origins of U.S. judicial review in this book was learned over several happy lunch table discussions with Professor Gordon S. Wood, who is the Alva O. Way University Professor Emeritus at Brown University. Citations from one of his articles, Gordon Wood, “The Origins of Judicial Review Revisited, or How the Supreme Court Made More Out of Less”; and a book chapter, “Judicial Review in the Era of the Founding in Is the Supreme Court the Guardian of the Constitution? do not come close to doing justice to the insights I learned from talking about this subject with Gordon Wood on many occasions. I should add that any errors that remain in the books about the origins of American judicial review are solely my own. The theory that judicial review sometimes emerges for rights from wrongs reasons and not from federalism and separation of powers umpiring emerged from a lunch conversation that I had many years ago with my Uncle Judge Guido Calabresi. I mentioned the importance of umpiring in explaining the emergence of judicial review, and my Uncle Guido countered by saying that umpiring had played no role at all in the emergence of Italian judicial review, which was a reaction to the rights abuses of the Fascists and Mussolini. Shortly after that, I read Professor Alan Dershowitz’s powerful book, Rights from Wrongs:  A Secular Theory of the Origins of Rights (2005), and I  realized that there was a whole additional, major causal factor behind the emergence of judicial review, which no comparativists had written about. The Dershowitz Rights from Wrongs book was a great inspiration in writing these two books. I have also learned immensely from Yale Law School Visiting Professor Dieter Grimm, a former justice of the German Constitutional Court; and from Yale Law School Visiting Professor Aharon Barak, a former president of the Israeli Supreme Court. Both Professors Grimm and Barack made time for many lunches and dinners with me, and I count them both as good and inspiring colleagues and as good friends. Professor Barak hosted me for an unforgettably memorable trip to Israel, which I hope will be the first of many visits. I am also greatly indebted to Justice Rosalie Silberman Abella, a Canadian Supreme Court justice, who gave me extensive written and telephoned comments on my chapter on Judicial Review in Canada. Justice Dieter Grimm gave me similar comments on my chapter on Germany; and Laurent Fabius, the president of the French Constitutional Council gave me similarly helpful comments on my chapter on Judicial Review in France. I thank all three international jurists from the bottom of my heart for their comments, and I must say again that I am responsible for any errors in the manuscripts as to Germany, France, Canada, and Israel, which remain.

Acknowledgments  xvii I am also deeply grateful to my friend Robert Post for sharing with me his vast and hugely impressive Holmes’ Devise manuscript on the Taft Court. It was great fun to read, and I learned a lot about the period between 1909 and 1930, which I had not known. I am in debt to him for shaping my understanding of this time period and of the justices who served on the pre-New Deal Supreme Court. Three Northwestern colleagues with an interest in comparative constitutional law have also been a huge help: Professor Erin Delaney; Professor Pierre Le Grande of the Sorbonne, who regularly visits at Northwestern; and Professor Andy Koppelman. Erin Delaney gave me the most substantive advice I received from any law professor in the country on my two book series, tempered by some wise political advice, as well, which I tried, (probably unsuccessfully), to follow. Pierre Le Grande is a wonderful colleague who visits Chicago for six weeks every year, when he is on leave from the Sorbonne, and is teaching at Northwestern. We have coffee weekly, and he too has given me help on the Chapters on France and Canada. And, finally, my very good, and very loyal, friend Andy Koppelman gave me some good plain writing and editing advice that will, I hope, make the book more fun to read. They are all treasured colleagues along with many other such superb friends as: Marty Redish (who got me hired!), John McGinnis, Jim Lindgren, Shari Diamond, Josh Kleinfeld, Bob Bennett, Dan Rodriguez, Kim Yuracko, Jim Pfander, Ron Allen, Steve Lubbet, Tonja Jacoby, and, of course, Jim Speta, who I thank as a friend as well as as a Dean. My longstanding interest in Comparative Constitutional Law grew significantly because of my former colleague, Tom Merrill’s observation to me, in a conversation, that legal scholarship is short on Qualitative Empirical work: Work which brings new information or data to the table, historical or comparative, has the potential to make the world a better place. The best work Tom said is that which brings new information or data to the table. I remain an originalist on questions of constitutional and statutory interpretation, but I also think that as a child of the Enlightenment Qualitative Empirical scholarship has a lot to recommend it, and I consider these two books to be examples of Qualitative Empirical work. I have written five or so Quantitative Empirical articles (counting rights in state bills of rights in 1868; 1791; and 2018), which I am quite proud of, as well as countless originalist articles, which I am also proud of and still agree with. But, I think that in law, in particular, the Enlightenment commitment to scientific reasoning from empirically known facts will most often require Qualitative rather than Quantitative empirical work or positive doctrinal or textual analysis. Tom Merrill’s partial embrace of Qualitative Empiricism, as well as his traditional legal work, has been of great value to me in setting an agenda for my own scholarship. David Van Zandt’s emphasis on Quantitative Empiricism, and his

xviii Acknowledgments disdain for Qualitative Empiricism or traditional legal analysis went too far in my personal opinion, but it was nonetheless an important intellectual influence on me for which I will be eternally grateful. I doubt that I would have written these two books if it were not for Tom Merrill’s and David Van Zandt’s prodding ideas about what counts as valuable legal scholarship. I also want to mention here a huge institutional debt to Northwestern Law School’s founding Dean, and its most preeminent legal scholar of all time, John Henry Wigmore. Wigmore began his career as a young scholar, from 1889 to 1892, at Keio University School of Law in Japan, and his comparative law scholarship was extensive. He was probably one of the first Americans to teach in, or visit, Japan, to learn the language, and to publish an academic book in Japanese. Wigmore wrote in Japanese a detailed study of The Tokugawaa Shogunate in the Edo period, which was translated into English in the mid-1930’s under the title Materials for the Study of Private Law in Old Japan. Wigmore’s path-breaking comparative law treatise set the gold standard for the field in which these two books lie. John Henry Wigmore, A Panorama of the World’s Legal Systems published in three volumes in 1928 made him the Father and popularizer of the study of comparative law in the United States. Wigmore’s three volume Panorama of the World’s Legal Systems (1928) covered all sixteen world legal systems, which Wigmore knew about and had studied in all of human history. Wigmore’s sixteen human legal systems discussed in A Panorama of the World’s Legal Systems included: (1) Ancient Egyptian law from 4000 B.C. up to the Roman conquest of Egypt in 30 B.C. when the Emperor Augustus Caesar beat Mark Antony and Cleopatra in the Battle of Actium causing the two lovers to commit suicide. (2) Ancient Mesopotamian law, which lasted from 4,000 B.C. until 100 B.C. when Greek and then Roman law replaced it. (3) Ancient Hebrew law, which lasted from 2100 B.C. until 1600 A.D. when Wigmore notes that the Jewish people lost the ability to speak Hebrew. Wigmore would be stunned by the reemergence of Hebrew as a spoken language in 20th Century Israel. (4) Ancient Chinese law from 2500 B.C. up to the Chinese Constitution of 1931. Wigmore notes that the Chinese and Greek legal system are the only ones of the 16 he studied in human history that were entirely secular in origin. (5) The ancient Hindu, Buddhist, and Brahmin aspects of the law of the Indian Subcontinent from 1000 B.C. up to the British Raj in 1928. (6) The ancient Greek secular legal system from 1200 B.C. until the absorption of the Greek legal system into the Roman legal system in about 300 A.D.; (7) The ancient Roman legal system over all eight centuries of its evolution from 400 B.C. until the fall of the Roman Empire in the West in 476 A.D. (8) The Japanese legal system from 500 A.D. to 1928. (9) The Mohammedan legal system from 800 A.D. to 1200 A.D. (when it ruled the world) all the way up until 1928 (when it became plagued by backwardness). (10) The Keltic legal system from 50 B.C. up to 1928 in Ireland with a possible future in Scotland and Wales. (11) The Slavic legal system from 600 A.D.

Acknowledgments  xix to 1928, which was destroyed by Soviet communism. (12) The Germanic legal system from the 900’s A.D. to the 1100’s A.D. when German law was replaced by what Wigmore calls Romanesque Law, which we today call the Civil Law. (13) The Maritime legal system from 1500 B.C. in Egypt to 1924 A.D. (14) The Papal (or Canon Law) legal system from 91 A.D. to 1917 A.D. (15) The Romanesque legal system, which we today call the Civil Law legal system, which has subsisted from the 1100’s A.D., in Bologna, Italy, up to 2020. Two-thirds of the people in the world today live in civil law legal systems if one counts China as being a Civil Law regime. And, finally, (16) what Wigmore calls the Anglican legal system, and which we would call the Common Law legal system. Wigmore dated the common law legal system as beginning with William the Conqueror’s Domesday Book, published in 1085 A.D. and continued following it up to the publication of his Panorama in 1928. One third of the world’s people live today in common law countries or in Mixed Common Law and Civil Law regimes. All of this comparative law scholarship, was done, in addition, to Wigmore’s work on Evidence, as to which he is a founding figure as well. In fact, most lawyers think of Wigmore as an Evidence Scholar and not as the founder of Comparative Law in the United States. Moreover, in addition to Wigmore’s treatises on Evidence and on Comparative Law, the Northwestern Pritzker School of Law library has copies of more than 600 articles and books published by John Henry Wigmore over the course of his life! Wigmore was mentored after graduating from Harvard Law School by Supreme Court Justice Louis Brandies, himself a great empiricist, and Wigmore served as the Dean of the Northwestern Law School from 1901 until 1929. Few Deans, if any, have ever surpassed Wigmore’s scholarship. In writing these two comparative constitutional law books, I am to put it mildly standing on the shoulders of a giant who is recognized as such just for what he wrote about the common law of evidence! I am truly humbled to be teaching Comparative Constitutional Law at a law school with such an illustrious predecessor. Most of all, of course, I want to thank my beloved and devoted wife, Mimi Tyler Calabresi, and my four wonderful children: Robert, James, Elizabeth, and Tyler for their love, support, and patience while I labored on this project. They were in­dispensable at every turn in the road for making it possible for me to finish these two books. I love them all dearly. I would finally like to thank Foundation Press for graciously giving my per­mission to reprint material on the histories of the G-20 constitutional democ­racies, on the origins of the civil law and common law legal traditions, and on the various modes of judicial review in all the many country studies from my Foundation Press casebook. I also thank the many other publishers, whose work is listed herein, who gave me permission to quote from their publications.

xx Acknowledgments In addition, I am gratefully indebted to the following authors and publishers for permission to excerpt the following publications: Aucoin, Louis M., Judicial Review in France:  Access of the Individual Under French and European Law in the Aftermath of France’s Rejection of Bicentennial Reform, 15 B.C. Int’l & Comp. L. Rev. 443 (1992). Chen, Albert H.Y., ed., Constitutionalism in Asia in the Early Twenty-​First Century (Cambridge University Press, 2016). Currie, David P., The Constitution of the Federal Republic of Germany (University of Chicago Press, 1995). Ferraz, Octavio Luiz Motta, Harming the Poor Through Social Rights Litigation: Lessons From Brazil, 89 Texas L. Rev. 1643 (2011). Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013). Ginsburg, Tom & Huq, Aziz, eds., Assessing Constitutional Performance (Cambridge University Press, 2016). Goldsworthy, Jeffrey, ed., Interpreting Constitutions:  A Comparative Study (Oxford University Press, 2007). Grimm, Dieter, Constitutionalism: Past, Present, and Future (Oxford University Press, 2016). Howell, P.A., The Judicial Committee of the Privy Council 1833–​1876: Its Origins, Structure and Development (Cambridge University Press, 2008). Ibhawoh, Bonny, Imperial Justice Africans in Empire’s Court (Oxford University Press, 2013). Kende, Mark S., Constitutional Rights in Two Worlds:  South Africa and the United States (Cambridge University Press, 2009). Kommers, Donald P. & Miller, Russell A., The Constitutional Jurisprudence of the Federal Republic of Germany (3d ed. Duke University Press, 2012). Law, David S., The Anatomy of a Conservative Court: Judicial Review in Japan, 87 Texas L. Rev. 1545 (2009). Oliver, Dawn & Fusaro, Carlo, eds., How Constitutions Change:  A Comparative Study (Hart Publishing, 2013). Rogoff, Martin, French Constitutional Law:  Cases and Materials (Carolina Academic Press, 2010). Shapiro, Martin & Stone Sweet, Alec, eds., On Law, Politics, And Judicialization (Oxford University Press, 2002). Stone, Alec, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford University Press, 1992). Taylor, Greg, The Commerce Clause—​Commonwealth Comparisons, 24 B.C. Int’l & Comp. L. Rev. 235 (2001).

Winds of the world, give answer! They are whimpering to and fro— And what should they know of England who only England know?— Rudyard Kipling The English Flag 1891

Introduction The Birth and Growth of Judicial Review in the Civil Law World This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-​volume series, I showed that judicial review was born and grew in common law G-​20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom. I now turn, in Volume II, to the magnificent civil law, constitutional democracies of: (1) Germany, (2) Japan, (3) Italy, (4) France, (5) South Korea, (6) Brazil, (7) Indonesia, and (8) Mexico. I also discuss the birth and growth of judicial review in two transnational courts whose jurisdiction includes common law as well as civil law countries: (9) the European Union; and (10) the European Court of Human Rights. I aim to show that in the civil law constitutional democracies, judicial review emerges because of: (1) umpiring, (2) rights from wrongs, (3) borrowing, and (4) when the political structure of a country’s institutions leave space within which the Constitutional Courts can operate. Ancillary causes of the birth of judicial review are: (1) elite hegemonic entrenchment, and (2) reasons of insurance and commitment Why then have I considered the emergence of judicial review in civil law countries in a different volume from the one that addresses the emergence of judicial review in common law countries? Why do I not consider nation state formation and constitution writing as Bruce Ackerman so brilliantly does in his new book Revolutionary Constitution: Charismatic Leadership and the Rule of Law (2019)? The answer is because I take it as a given that an independent nation-​state exists, and even that it may have a constitution. I ask here, assuming these two things are true: What will help get judicial review started in a civil law country, and what will make it grow in power? What has caused civil law countries since 1945 to add written Bills of Rights and systems of checks and balances to their The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0001

2  the History and growth of Judicial Review, Volume 2 constitutions? I think civil law countries since 1945 have overcome problems that are unique to the civil law tradition that have helped those countries set up systems of powerful judicial review. In 1945, only three countries in the world had judicial review: the United States, Canada, and Australia, and only the United States had a judicially-​ enforced written Bill of Rights. All three countries with judicial review in 1945 were common law countries where historically judges have played a much bigger role than they do in civil law countries. There was thus a real question in 1945 as to whether powerful judicial review could take root in a civil law nation. Today, we know that the answer is that it emphatically can, as Germany has so spectacularly demonstrated since 1949. I will show in the eight civil law jurisdictions and the two mixed jurisdictions covered in this volume what factors led to the birth and growth of judicial review. In addressing this question, I express skepticism about two theories as to what gets judicial review started and what causes it to grow. First, I am skeptical of Ran Hirschl’s theory that judicial review gets started when elites start losing elections and entrench themselves in the courts. Second, I am skeptical of Tom Ginsburg’s law and economics view that judicial review gets started when two coequal political parties decide to engage in “insurance and commitment” so that no one loses their shirt when they lose an ordinary election. I see very little evidence of Hirschl’s or Ginsburg’s theses being broadly explanatory in the civil law world. In contrast, I see a lot of evidence that judicial review is born and grows in power in civil law countries because of: (1) the need for a federalism or separation of powers umpire; (2) rights from wrongs reasons; (3) borrowing; and (4) the presence of a system of checks and balances, which gives constitutional courts soace political in which to act. As I mentioned above, I write in the shadow of Bruce Ackerman’s latest magnificent book, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law. Ackerman shows conclusively that countries are formed and constitutional democracies with written constitutions emerge as a result of: (1) the writing by charismatic leaders and movements of a revolutionary constitution, (2) the making of an elite bargain, or (3) from an evolutionary constitutional regime. I think that regardless of which of Ackerman’s pathways a nation-​state follows, judicial review will work best when it is facilitated by: (1) a need for umpiring, (2)  a desire to constitutionalize rights to correct past wrongs, (3)  a desire to borrow, and (4) when the political structure of a country’s institutions leaves political space within which a Constitutional Court can operate. My analysis is not inconsistent with Ackerman’s. It nicely supplements his pathbreaking work. I simply choose to focus on what augments judicial power, while he chooses to focus on the anterior issues of nation-​state creation and

Introduction  3 constitution and Bill of Rights writing. These two phenomena are separate, although interrelated things. The first way to get judicial review going is the need for an umpire in a federal or separation of powers regime. Courts exercising the power of judicial review can play that role. I am by no means the first to point this phenomenon out, although I mentioned it early on along with other authors. I wrote in 1995 that “it appears that judicial review and federalism go hand in hand all over the world. A major impetus in the global spread of judicial review has been the need for central judicial umpiring of federalism guarantees.”1 Professors Mauro Cappelletti and William Cohen made essentially the exact same point about the emergence of judicial review in the United States, Canada, Australia, and India in 1979.2 And, Professor Martin Shapiro has made the same argument, in detail, in his splendid essay on “The Success of Judicial Review and Democracy” in On Law, Politics, & Judicialization. As Professor Shapiro writes: Until after the Second World War, constitutional judicial review, that is, the power of a court to invalidate a statute or other action of government because it is in conflict with the constitution, really only flourished in three countries: the United States, Canada, and Australia. This obvious finding of comparative law led to a number of causal hypothesis. *** First, successful constitutional judicial review is caused by and may be requisite to successful federalism. At the time these three countries were with one more, the working federalisms among the nations of the world. And the one extra, Switzerland, also had a form of judicial review, although a much weaker one. This hypothesis was supported by the argument that a federalism required some institution to police its complex constitutional boundary arrangements. In more contemporary, public choice terms, the member States of a federation have entered into a joint contract, each because it sees more benefit from entering than not entering. Even though each will wish to violate the specific terms of the contract from time to time, each will see that it is to its benefit that all the others always obey the rules of the contract. Thus, each, in spite of its own urges to deviate, will continuously support the creation and maintenance of some institution designed to spot and deter non—​compliance by the others.3

1 Steven G. Calabresi, “A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez, 94 Mich. L. Rev. 752, 806 (1995) (emphasis in the original). 2 Mauro Cappelletti & William Cohen, Comparative Constitutional Law 10–​11 (1979); see also Allen R. Brewer-​Carras, Judicial Review in Comparative Law (1989) (discussing then-​contemporary trends toward constitutionalism, judicial review, and federalism). 3 Martin Shapiro, The Success of Judicial Review and Democracy, in On Law, Politics, & Judicialization 149 (Martin Shapiro & Alec Stone Sweet eds., 2002).

4  the History and growth of Judicial Review, Volume 2 Professor Shapiro then adds, and I completely agree, that federalism can only work if there is a judicial body that can police the state-​national bargain. Ideally, such a body ought to be picked half by national officials and half by state officials as actually happens in the Federal Republic of Germany; and as happens to some degree in the United States where the Senate, in which the states are equally represented, must confirm presidential Supreme Court nominees. Federalism umpiring is thus definitely a partial cause of the origins of judicial review of the constitutionality of legislation as Professor Shapiro argues. Second, on the umpiring point, I also agree with Professor Shapiro that the need to police a separation of powers between the president of France and the premier of France elected by the National Assembly proved to be enough historically to create judicial review in a society that had been very ideologically hostile to it. Professor Shapiro thus opts “for modifying the federalism hypothesis for [the creation and growth of judicial] review to a more general division of powers hypothesis.”4 I think Professor Shapiro oversimplifies the birth of judicial review in France by focusing only on the events of 1958 and not on the events of 1971, 1974, and 2008. As I will show in the Chapter on France, the birth and growth of judicial review in France involved a lot more than just separation of powers umpiring. Professor Shapiro adds that all the countries of Eastern Europe, which were liberated after the end of the Cold War and the collapse of the Soviet Union had to opt for historical reasons for French-​style hybrid-​presidential regimes. Professor Shapiro notes that just as the division of power in France between the president and the Parliament led to the emergence in France of judicial review of the constitutionality of legislation, so too did that same division of power produce the same outcome in all the countries of Eastern Europe, which opted for judicial review, in part, for separation of powers reasons.5 Second, I think judicial review and Bills of Rights to be enforced by courts against legislatures very often emerge as a rights from wrongs response to an abominable deprivation of human rights such as occurred during American slavery, the Holocaust, or South African apartheid. This is a phenomenon that is very well explained in Alan Dershowitz, Rights from Wrongs: A Secular Theory

4 Id. at 153. 5 Professor Shapiro adds that judicial power is greatly strengthened not only by federal or separation of powers systems, but that judicial power also grows because Supreme Courts and Constitutional Courts make law one case at a time. “A second institutional strength of courts in general that protects constitutional courts in particular is the low visibility, technical, incremental, case-​by-​case model of judicial decision-​making.” I adamantly agree with this observation as well of Professor Shapiro’s, and I think the one case at a time rule has done a lot, along with umpiring federalism and separation of powers disputes, to lead to the origins and growth of judicial review of the constitutionality of legislation over time.

Introduction  5 of the Origins of Rights.6 Oftentimes, as in the United States and in the Federal Republic of Germany, Bills of Rights and judicial review of the constitutionality of legislation originates for some combination of umpiring and rights from wrongs reasons put together.7 The wrongs that give rise to constitutional rights need not be so egregious that they lead to what Professor Ackerman refers to as a revolution on a human scale. Lesser wrongs can lead to constitutional change and judicial review. Thus, the slights that French Canadians endured from English Canadians led Prime Minister Pierre Elliott Trudeau to institute the Canadian Charter of Rights and Freedoms. And, the embarrassing record the United Kingdom compiled before the European Court of Human Rights led U.K. Prime Minister Tony Blair to pass the Human Rights Act of 1998. Neither Trudeau’s nor Blair’s constitutional changes could be described as being a revolution on a human scale. Nonetheless, both are important instances of wrongs leading to a judicially enforceable Bill of Rights. Third, I  also think that judicial review appears for borrowing reasons in some countries dependent upon aid from the World Bank and the International Monetary Fund (IMF), like Brazil, Mexico, and Indonesia. Other countries like:  (1) Canada, (2)  Australia, (3)  India, (4)  Japan, (5)  Germany, (6)  Italy, (7)  Brazil, and (8)  Mexico all to some degree borrowed judicial review from the United States. More recently, (1) France, (2) the nations of Eastern Europe, (3) Spain, (4) Portugal, (5) South Africa, (6) Brazil, (7) Mexico, (8) South Korea, 6 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origin of Rights (2004). 7 It is important to indicate that I agree with Professor Dershowitz that in American constitutional law, the rights from wrongs approach leads in my opinion to the protection of individual rights that are very deeply rooted in American history and tradition as the U.S. Supreme Court held in its Washington v. Glucksberg, 521 U.S. 702 (1997). On one hand, I thus do not agree with Professor Ronald Dworkin’s approach to deriving individual rights from ahistorical principles of natural law. Ronald Dworkin, Law’s Empire (1988). On the other hand, I do think that one of the most important historical individual rights in American constitutional law is the right conferred by Article I of the Massachusetts Constitution of 1780, which provided that: Art. I.—All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. It is thus true as a matter of original constitutional meaning that American court’s should enforce Lockean unenumerated rights in constitutional law cases because the Lockean individual rights in this clause are deeply rooted in American history and tradition as I intend to show in a forthcoming book that I am writing that looks at state bills of rights in 1791, in 1868, and in 2018. Examination of these state bills of rights, at the three different constitutional moments (to borrow a helpful phrase coined by Professor Ackerman), shows that a supermajority of the states in 1787, 1868, and in 2018 recognized Lockean natural rights in their state constitutions. Such rights are therefore deeply rooted in American history and tradition, which explains why such cases as Griswold v. Connecticut, Lawrence v. Texas, and District of Columbia v. Heller are all rightly decided. Steven G. Calabresi, On Originalism and Liberty, 2016 Cato Sup. Ct. Rev. 17 (2015–​2016).

6  the History and growth of Judicial Review, Volume 2 and (9) Indonesia have borrowed the Kelsenian Constitutional Court idea from Germany, which in turn had borrowed it from Czechoslovakia and Austria during the 1920s and 1930s. Finally, the United Kingdom has borrowed judicial review from the other countries in the common law world. A major cause of the spreading of judicial review is therefore borrowing. Fourth, I think that judicial review does best when the political structure of a country’s institutions leave political space within which a Constitutional Court or a Supreme Court can operate. This is emphatically true of the Supreme Court in the United States. I think the division of power among the president, the Senate, and the House of Representatives, and between the federal government and the states, means that the Supreme Court will almost always have some democratically elected actors backing up its judicial review holdings. Similarly, I think that the extreme proportional representation in the Israeli Knesset, which has eight political parties, empowered President Aharon Barak in the 1990s when he first gave Israel a constitution and then gave it judicial review. As I examine the eight civil law countries and the two mixed civil law/​common law jurisdictions, which are covered in Volume II, I  will ask which countries have constitutions that leave political space for a Constitutional Court to act and which do not. My conclusion is that the civil law world is very similar to the common law world and that the same four things that get judicial review started and cause it to grow in the one also cause it to get started and to grow in the other. This means that I can offer a positive account of what causes judicial review to get started and to grow in seventeen very important democracis:  (1) the United States, (2) Germany, (3) India, (4) France, (5) the United Kingdom, (6) Italy, (7) Brazil, (8) Canada, (9) South Africa, (10) Australia, (11) South Korea, (12) Israel, (13) Indonesia, (14) Mexico, (15) Japan, (16) the European Union, and (17) the Council of Europe, which has given rise to the European Court of Human Rights. These seventeen constitutional systems of judicial review exist on all six inhabited continents of the world. I  cover the New World as well as the Old World, and the Global South as well as the Global North. I cover the most populous Protestant, Catholic, Jewish, Islamic, and Hindu countries in the world. The countries I study range from rich to poor, from those that are territorially large, to those that are territorially small, from very heavily populated, to underpopulated, and from the common law tradition, to the civil law tradition. The fact that all seventeen of these jurisdictions point to the same four factors as being important in the birth and growth of judicial review suggests that I have succeeded in offering a comprehensive positive account of the birth and growth of judicial review. I begin Volume II with two very important background chapters for newcomers to comparative constitutional law before reviewing the eight case

Introduction  7 studies from the civil law world and the two multi-​national case studies. Those who are already knowledgeable about comparative constitutional law can skip the two background chapters and begin reading with Chapter Three, which concerns judicial review in Germany. The first background chapter explains the origins and development of the civil law legal tradition, which it is essential to understand for my later chapters to make sense. The second background chapter explains the unique systems of either Concentrated or Hybrid judicial review, which prevail in these civil law countries and their theoretical underpinnings. These systems of judicial review are in place in all of the civil law countries I am studying, and they differ in critical ways from the diffuse, American-​style system of judicial review that prevails in the common law countries.

Chapter One

The Civil Law Legal Tradition My two-​volume study of the Birth and Growth of Judicial Review begins each volume and chapter with some background history on the G-​20 constitutional democracies, Israel, and the European Court of Human Rights whose constitutional law I compare to U.S. constitutional law. These jurisdictions have very different histories from the history of the United States, but some of the timeless values of the U.S. Constitution are nonetheless expressed in their constitutional structures, almost all of which contain systems of checks and balances, albeit very different systems of checks and balances from the ones Americans are used to. I believe that it is absolutely essential to know the history of a country, and the legal tradition to which it belongs, before one can even begin to understand and compare its constitutional law. This holds especially true with the great legal traditions like the common law legal tradition and the civil law legal tradition. Constitutions arise in unique historical contexts and cultures, and they are shaped by those contexts and cultures. Comparing constitutional court systems and judicial decisions in an ahistorical void is thus a sterile and fruitless endeavor. Similarly, law and economics may help us figure out why some constitutional regimes prosper more than others, but it does not explain the birth of judicial review in most major countries, particularly prior to the 1980s. Finally, I  think judicial review of the constitutionality of legislation differs in important theoretical ways in common law and in civil law countries. It is time now to consider why. There are four major legal traditions at work in the world today, one of which is religious in origin and three of which are Western in origin. The major religious legal tradition that is followed by many countries today is the Islamic legal tradition, under which the Koran and the Sharia form the key source of legal norms. Core countries within this tradition include the Sunni monarchy in Saudi Arabia and the Shia Islamic Republic of Iran. For many devout Muslims, the Koran and Sharia, as interpreted by religious authorities, are the supreme law and take precedence over and inform the meaning of constitutions and criminal and civil codes. The Koran and Sharia can be drawn on to shape all social

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0002

10  The History and growth of Judicial Review, Volume 2 and private actions, as they are all-​encompassing in the topics they address. Everything from usury laws to laws concerning sexual relationships are covered by the Koran and the Sharia. The three major Western legal traditions that are at work in the world today are the civil law legal tradition, which prevails in Continental Europe, Latin America, and Asia; the common law legal tradition, which prevails in the United Kingdom, the United States, India, Canada, Australia, and New Zealand; and the communist legal tradition, which prevails, in greatly modified form, in the People’s Republic of China, North Korea, Vietnam, and Cuba. All three Western legal traditions differ from the Islamic legal tradition in drawing a sharp distinction between law and religion and between lawyers/​ judges and priests/​ministers/​rabbis/​ayatollahs.1 Many Western nations, including the United States, include many people who are very religious, but almost everyone in the West believes that religion and law ought to be kept, to some extent, separate and apart from one another. Lawyers/​judges and priests/​ ministers/​rabbis/​ayatollahs are different career paths with different educational training institutions that produce different personnel.2 The courts in Western countries are not dominated by religious institutions or by religious beliefs. Moreover, in the Western legal traditions, there exists a deeply held idea that the law can change over time and that progress is possible.3 In some but not all Islamic countries, this idea that the law can change and progress over time may come into conflict with deeply and sincerely held religious beliefs. Indeed, some people who are religious, like former U.S. Supreme Court Justice Antonin Scalia, may think that societies are as likely to rot as they are to progress. The three Western legal traditions include, as I mentioned, the communist legal tradition, as modified by the government of the People’s Republic of China. This legal tradition is relevant only because China has a population of over 1.35 billion people, so anything Chinese is important enough to register on a global scale. Prior to the Communist Revolution, China was, as is Japan today, a civil law country having borrowed the civil law from Western European traders and colonists. The Communist Revolution altered the Chinese legal tradition by importing Marxism and Leninism into China, both of which are Western systems of ideas. Since the 1970s, China has been moving further and further away from Marxism and Leninism in organizing its economy, and today the Chinese economy is to a significant degree a free market economy into which the government sometimes interferes substantially. The Constitution of China, however,

1 Harold J. Berman, Law and Revolution:  The Formation of the Western Legal Tradition 7–​10 (1983). 2 Id. 3 Id.

The Civil Law Legal Tradition  11 continues to proclaim that the government of China is a dictatorship of the proletariat, that is, of industrial workers and of peasants. In this sense, China is unique, although its system may find some parallels in the governments of Vietnam, Cuba, and to a lesser extent North Korea. The civil law and the common law legal traditions are overwhelmingly dominant in the world today throughout Europe, the Americas, Australia, and most of Africa and Asia. The story of these two legal traditions and how they came first to differ and now to converge is important to beginning the study of comparative constitutional law. I will tell in this volume the story of the civil law legal tradition, which is one thousand years older and much more widespread among the countries of the world than is the common law legal tradition, which I described in Chapter One of Volume I. My intellectual debts in telling this story are to: (1) Professor Mirjan Mirjan Damaška from whom I first heard about the history of the civil law in my comparative law class at Yale Law School; (2) to Professor Mary Ann Glendon who co-​edited a wonderful casebook on comparative private law, Comparative Legal Traditions: Text, Materials, and Cases on Western Law, which I taught out of from 1991 until 2008, when I  started teaching only comparative constitutional law instead; and (3), and, finally, to Professsor John Henry Merryman whose book The Civil Law Tradition: An Intoduction to the Legal Systems of Europe and Latin America (3rd ed. 2007) has also greatly shaped my thinking on these topics.  The reason this chapter is in my book, which you are now reading is because prior to World War II, the civil law tradition was opposed to judicial review and opposed to a big role played by judges in enforcing a constitution. This is shown by the fact that in 1945, only the United States, Canada, Australia, and Switzerland had systems of judicial review. Even the Swiss system was far weaker than were the U.S., Canadian, and Australian systems. Since 1945, a revolution has occurred in all the major civil law countries, so that today they almost all have a specially chosen Constitutional Court, which alone has the power of judicial review. How these Constitutional Courts came to develop is a theme of this chapter.

I.  The History of the Civil Law Tradition The origins of the civil law legal tradition can be traced to ancient Roman law. The Roman Republic began circa 509 B.C. with the overthrowing of the Roman monarchy, and its replacement with a republican government headed by two consuls (who were elected annually by the citizens), an aristocratic senate, and a popularly elected assembly. The Constitution of the Roman Republic was described by the political philosopher Polybius as being that of a mixed regime—​partly

12  The History and growth of Judicial Review, Volume 2 democratic, partly aristocratic, and partly monarchical. Rome had a very complex Constitution with a system of checks and balances and a separation of powers, which even allowed for short periods of constitutional dictatorship during especially dire national emergencies. The Constitution of the Roman Republic was well known to James Madison and to the other Framers of the U.S. Constitution, who consciously sought to replicate its success. The very name “the senate” for the upper houses of many modern democracies, including our own, comes from the name of the aristocratic Senate of the Roman Republic.4 The civil law legal tradition itself originated, circa 450 B.C., with the adoption of the Twelve Tables of Roman law more than a half-​century after the overthrowing of the last Roman king.5 Prior to that date, Roman law was based on religion and on monarchical decrees. The Twelve Tables were reduced to writing to prevent arbitrary administration of the law by the magistrates, and the content of the Twelve Tables may also have been influenced by the Athenian law of Solon. No copy of the Twelve Tables has survived, but we do know that they were not yet a comprehensive code and that the subjects addressed were mostly private law and civil procedure. The Twelve Tables came to be amended by the formal adoption of new laws enacted pursuant to the Republic’s Constitution. John Henry Wigmore says that [l]‌ong after the introduction of wax tablets for writing, and of papyrus and parchment rolls for the recording of law and literature, the Roman practice prevailed of publicly setting up important laws on durable marbel or bronze, in the form of pillars or placards, for general perusal. Three thousand bronze plates, the records of such laws, were preserved on the Capitoline Hill in a special library. But these have all disappeared. Only a score or more, from other regions of the empire have been unearthed by archaeologists.6

During the period of the Roman Republic, from 509 B.C. to 20 B.C., Rome’s biggest contribution to the civil law legal tradition came from the emergence of a class of men called Jurisconsults, who applied the scientific methods of Greek philosophy to the law, something the Greeks themselves never did. The Jurisconsults early on did not make their living as lawyers but were experts who gave legal opinions—​responsa—​to anyone who asked for them publice respondere. Government officials would seek advice from several Jurisconsults

4 For a detailed discussion of Roman public law, see Andrew Lintott, The Constitution of the Roman Republic (1999). 5 1 John Henry Wigmore, A Panorama of the World’s Legal Systems 373 (1928). 6 Id. at 376–​77.

The Civil Law Legal Tradition  13 before rendering a decision, and ordinary citizens came to ask for their advice as well. One lasting legacy of this system for the civil law legal tradition is that in that tradition, scholars have always been more important than judges. The great names of the civil law legal tradition are the names of scholars, whereas the great names of the common law legal tradition are judges.7 At the end of the Republic and during the early period of the Empire, the popular assembly was replaced as the decision-​maker and then was eliminated altogether. Jurisconcults and then professional judges, called Praetors, replaced the lay jury. Pontius Pilate, who tried Jesus of Nazareth and sentenced him to be crucified, was the Roman Praetor in Jerusalem During the Classical period, the Jurisconsults thus gave opinions at the request of private parties, advised the magistrates on the administration of justice, advised the praetors on the drafting of edicts, held high judicial and administrative offices, and produced all kinds of legal commentaries and treatises.8 Roman law grew up as an uncodified body of case law, and an important element in Roman law traditionally included what scholars said about the law. This hierarchy of scholars over judges in the civil law legal tradition goes back to the preeminence of the Jurisconsults in Roman law during the period of the Republic. Wigmore agrees.9 The most important jurist I know of in Roman history was Gaius, who wrote the Institutes of Gaius, circa 161 A.D., which was an introductory exposition of Roman law divided into four books. It essentially said that the whole body of the law was divided among three categories: (1) the law of personae (persons); (2) the law of res (things) and the way in which rights over things might be acquired including property, contract, and wills; and (3) the law of actiones (legal actions). This systematic treatise-​like compilation of classical Roman law became the basis for the Emperor Justinian’s Corpus Juris Civilis, which was issued from 529 A.D. to 534 A.D. Gaius was an originalist, in his day, and was very knowledgeable about the history of Roman law. He argued for as strict as possible an adherence to ancient rules and for resistance to innovation—​a wise way of privileging the laws of the Roman Republic over the laws of the Roman Empire. Peter Stein argues that the uncodified Roman law was in many ways more like today’s common law than it is like today’s codified civil law.10 “Stein concludes that classical Roman law resembles its early English counterpart in ‘external form and procedure,’ but

7 Id. at 396. 8 Id. at 396–​408. 9 Id. at 420–​43. 10 Peter Stein, Roman Law, Common Law, and Civil Law, 66 Tul. L.  Rev. 1591–1594 (1992), reprinted in Angel R. Oquendo, Latin American Law 11–​12 (2006).

14  The History and growth of Judicial Review, Volume 2 comes much closer to its continental European counterpart with respect to ‘substantive content.’ ”11 The Roman Empire in the West fell in 476 A.D. with the capture of Rome and the deposition of its last emperor, Romulus Augustus. The Roman Empire in the East, however, lasted for almost another thousand years, only to be finally overthrown by the invading Ottoman Turks in 1453. The Roman Empire in the East had its capital in Constantinople, known today as Istanbul, in Turkey. The Eastern Empire included Greece and Turkey as well as much of the Balkans, and its fortunes ebbed and flowed during the years between 476 and 1453 A.D. The most powerful and influential Roman emperor in the East, and the last to speak Latin instead of Greek as his first language, was the despot known as Justinian “the Great.”12 Ironically, it was this despicable man who did the most to convey to the modern world what we now know of Roman law. Justinian reigned from August 1, 527, to November 14, 565 A.D., and he wanted to re-​create the full glory of the Roman Empire. The reign of Justinian marked the real ending point of Hellenistic culture and of the ancient world of the Mediterranean Basin. Justinian and his Byzantine Empire, closed the philosophical schools in Athens founded by Plato and Aristotle and made it illegal to worship the ancient Greek and Roman gods at a time when many were still doing so. The Parthenon was converted from being a Temple to Athena to being a Christian church. Justinian was also the first Roman emperor to persecute both Jews and pagans, many of who still worshiped the Greek and Roman gods. The ancient Hellenistic world ended in the Mediterranean because of the Emperor Justinian, and the Dark Ages began. All of this background material on Justinian’s totalitarian impulses is prefatory warning because of Justinian’s central role in transmitting the ancient Roman law of antiquity to the Middle Ages. Like any aspiring despot, Justinian wanted the fame, glory, and power that would go with being a great lawgiver. He also wanted to eliminate diversity of opinion as to what the law required. Justinian therefore ordered his jurist, Tribonian, the greatest lawyer of his day, to study all of ancient Roman law and to prepare a new code called, in Latin, the Corpus Juris Civilis—​ the essence or body of the civil law.13 The Corpus Juris Civilis, issued between 529 and 534 A.D., at the start of Justinian’s reign, included a Codex that compiled:  (1) imperial enactments to date; (2)  the Digest or Pandectae, which included extracts from the writings of Roman jurists that Justinian and Tribonian selected; (3)  the Institutes or

11 Oquendo, supra note 10, at 12. 12 J.A.S. Evans, The Age of Justinian: The Circumstances of Imperial Power (1996). 13 See generally James Q. Whitman, Long Live the Hatred of Roman Law!, 2 Rechtsgeschichte 40 (2003).

The Civil Law Legal Tradition  15 Institutiones, which was a student textbook that introduced the Code and developed it conceptually; (4) and the Novellae Constitutiones, literally new laws proclaimed by Justinian as emperor.14 All four parts of the Corpus Juris Civilis became binding law, and Justinian forbade references to any other sources of Roman law, including the original texts from which Tribonian had worked. No one really knows the extent to which Justinian changed the Roman law that was transmitted to us today, because most of the relevant original texts were destroyed, either by Justinian himself deliberately, or because they were lost due to their legal irrelevance once the Corpus Juris Civilis was published. In any event, for better or for worse, Justinian’s bowdlerized view of Roman law came to mean in the Middle Ages, and largely still means today, the law of Justinian’s Corpus Juris Civilis. Justinian’s Corpus Juris Civilis was published and distributed in the West during his reign, but it disappeared following the barbarian conquest of the Byzantine city of Ravenna in Northern Italy in the eighth century.15 No one knows for sure how much of Roman legal practice survived in the West after the barbarian conquest of Rome in 476 A.D., but this period has generally been known as the Dark Ages, notwithstanding a recent revisionist account.16 It is indisputable, however, that German tribal law came to dominate most of what had been the Western Roman Empire. Every German tribe had its own law, but they all recognized legal units of households, public assemblies of elders called moots or things that administered justice, and kings who had feudal ties and obligations to their barons and serfs. John Henry Wigmore discusses what he calls the Germanic Legal System at the end of Volume II of his treatise.17 Trials occurred by ordeal. Trial by battle was a favorite German ordeal and involved a battle between plaintiff and defendant, the accuser of crimes and the accused, using swords, lances, or battle-​axes as the occasion required. Trial by fire and trial by water were pagan attempts to call on the gods of fire and water to help uncover the truth. Trial by oath occurred before the moot, and involved the long ritualistic recitation of oaths. The common law method of trial by jury may have its origins in trial by oath, since the word “juror” is Latin for one who has sworn an oath. As Professor Mary Ann Glendon points out, two developments proved gradually to be fatal to the old Germanic folk law. First, powerful kings eventually emerged who challenged the old barbarian customs. Second, the spread of Christianity killed the old pagan gods of fire and water, and undermined the 14 Wigmore, supra note 5, at 444–​46. 15 Id. at 446. 16 Chris Wickham, The Inheritance of Rome:  Illuminating the Dark Ages 400–​1000 (2009). 17 Wigmore, supra note 5, at 813–​63.

16  The History and growth of Judicial Review, Volume 2 system of trial by ordeal. A turning point came with the reign of Charlemagne from 742 to 814 A.D. He was king of the Franks from 768 on, and king of Italy from 774 on. Charlemagne became the special protector of the pope in Rome, and was crowned by the pope himself, on Christmas Day in 800 A.D., as Imperator Romanorum—​Emperor of the Romans—​in St. Peter’s Basilica in Rome. This action by the pope nullified any claim to Western Europe that might have been asserted by the then Byzantine Empress Irene of Constantinople. Thus was born an entity known as the Holy Roman Empire. As Voltaire famously remarked: “[t]‌his agglomeration which was called and which still calls itself the Holy Roman Empire was neither holy, nor Roman, nor an empire.” Charlemagne’s interest in Rome was shared by other Western Europeans from 800 A.D. to 1100 A.D. “For five centuries the Roman Empire [in the West] had been a ruin, and Justinian’s law-​books had long been unknown or unstudied.”18 Somehow, in about 1070 A.D., a copy of Justinian’s Corpus Juris Civilis was found unneeded and unnoticed in a papal library. The scholar Irnerius, who was born in Bologna, Italy, very near the former Byzantine city of Ravenna circa 1050 A.D., began devoting himself to the study of jurisprudence, taking Justinian’s Corpus Juris Civilis as a guide. Thus began “one of the greatest intellectual phenomena recorded in European history—​the resurrection of Justinian’s law texts. Those resurrected books were destined once more to impress the Roman legal system not only on Europe but far beyond it.”19 Irnerius founded the Western world’s first law school and university at Bologna circa 1084 A.D., which became devoted to the teaching and studying of the version of Roman law in Justinian’s Corpus Juris Civilis. Students flocked to Bologna to study Roman law and organized themselves in a Roman law “corporation,” which was called a universitas. Soon these students returned to other parts of Western Europe where they, too, founded universities that were devoted to the study of Justinian’s Roman law. By the twelfth century, all of Western Europe became enthralled with Roman law, which was seen as being “written reason” because it was so much more sophisticated than the German tribal law, which had hitherto been in place.20 The growth of commerce in Western Europe during this period created a real need for a sophisticated commercial law—​a need that Roman law was able to help fill.21 Irnerius developed the custom of explaining the Roman law by means of glosses, which he wrote on the margin of a page of text to explain the text.22 He 18 Id. at 981. 19 Id. 20 Id. at 985. 21 Richard H. Helmholz, The Development of Law in Classical and Early Medieval Europe: The Bible in the Service of the Canon Law, 70 Chi.-​Kent L. Rev. 1557, 1578 (1995), reprinted in Oquendo, supra note 10, at 15. 22 Wigmore, supra note 5, at 991.

The Civil Law Legal Tradition  17 and his contemporaries were thus called glossators. The focus of the glossators on the text of the Corpus Juris Civilis, with their thoughts written only in the margin, gave birth to a civil legal tradition culture that is very textualist and formalistic. The next generation of civil law scholars after the glossators wrote academic commentaries on the Corpus Juris Civilis, so they were called commentators.23 The importance of the commentaries reflects the traditional weight given in the civil law legal tradition to scholarly writing and not to judicial case law. It was Bartolus and the Commentators who “carried the resurrected Roman law into the courts.”24 The huge birth in scholarship in and teaching of Roman law led to one of the most striking legal revolutions of which I am aware: the decision by all of Continental Europe’s many kingdoms, principalities, and duchies that the Corpus Juris Civilis should be received in their courts as the governing law on all matters. The reception of Roman law is one of the greatest triumphs of originalism over evolved law and practice of which I am aware. Centuries of evolved Germanic tribal law and custom were simply dropped and replaced completely with the law code of Justinian on the assumption that it accurately stated the law code of the defunct Western Roman Empire, which had ceased to exist five hundred years earlier. The process by which this occurred is called reception. Reception occurred first in Italy, where Roman law was first taught and where it was badly needed for Italy’s commerce and by her merchants. Reception occurred next in Southern France and then in Northern France, Germany, and Austria.25 The reception of Roman law was supported by the newly emerged kings in Europe, who benefited from the deference Roman law showed to the emperor, a deference captured in the saying of Ulpian that princeps legibus solutus est (“The sovereign is not bound by the laws.”). The Roman law became a European common law understanding of how the Corpus Juris Civilis applied to Medieval Europe. It was called the ius commune, which is Latin for the common law. The reception of Roman law and the rejection of at least 400 years of evolved German tribal law is, as I said, the greatest instance of the triumph of originalism over centuries of evolved law, which I am aware of. The ius commune and Roman law were received in Scotland, which has continued to use uncodified Roman law as its private law down to the present day. Even though Roman law was first taught at Oxford in the twelfth century, it was not received into law in England because of the tremendous power of the king’s judges and barristers, who had developed a body of English common law that

23 Id. at 994. 24 Id. at 999. 25 Id. at 1008–​11; Mary Ann Glendon, Paulo G. Carozza, & Colin Picker, Comparative Legal Traditions: Text, Materials, and Cases (3rd ed. 2007); at 50.

18  The History and growth of Judicial Review, Volume 2 precluded the use of Roman law in the king’s courts. The English common law courts developed early on their own unique law schools, which were called the Inns of Court, and which taught the judge-​made common law of England as being the law and not the Corpus Juris Civilis. As a result, England never received Roman law, although Roman law did have an influence on English admiralty law and in the courts of equity, such as the Court of Chancery and the Court of Star Chamber, which was abolished in 1641. Professor Glendon explains that in the late Middle Ages, “the jus commune, like the Latin language and the universal Church, was an aspect of the unity of the West at a time when there were no strong centralized political administrations and no unified legal systems, but rather a continuous struggle among the competing and overlapping jurisdictions of local, manorial, ecclesiastical, mercantile, and royal authorities. From the fifteenth century on, however, the relationship between the received jus commune and the diverse local and regional customary laws began to be affected, in varying degrees, by the rise of nationalism and the increasing consolidation of royal power.”26 From 1200 to 1600, there was also some agreement on sovereignty, although that too proved to be fleeting.27 The Reformation of the sixteenth century shattered the unity of Western Europe, which no longer accepted the jurisdiction of one universal church, but which was divided instead among various sects of Protestants as well as the Catholic Church. Protestants translated the Bible into the vernacular so that all churchgoers could read it, and the development of the printing press made vernacular Bibles ubiquitous. Thus, the religious and linguistic unity of Medieval Europe ended with the Reformation. Catholicism and Latin ceased to be universally accepted all across Western Europe. The jus commune remained, however, a unifying force, except in England, where the common law judges were powerful enough to keep it totally out of their courts. The Tudors and the Stuarts made a bid with the Court of Star Chamber to introduce a Roman law inquisitorial court into the English legal system, but the transplant was rejected in 1641 when Parliament abolished the Court of Star Chamber by statute. By this time, English Protestants associated Roman law with the Catholic Church and with the secret inquisitorial process of the Court of Star Chamber and the absence of jury trial, all of which England rejected. Roman law did, however, influence the Courts of Chancery and Admiralty, which survived the English Civil War. During the sixteenth and seventeenth centuries, the Reformation led to religious wars in France, the Holy Roman Empire, and in England. As Europe became divided between Protestants and Catholics, the late medieval recognition 26 Glendon et al., supra note 25, at 72. 27 Kenneth Pennington, The Prince and the Law, 1200–​1600: Sovereignty and Rights in the Western Legal Tradition (1993).

The Civil Law Legal Tradition  19 of the pope’s supreme authority to bless or to chastise a regime and to mediate disputes waned. In its place, thanks to writings of Jean Bodin and others, emerged an idea of the sovereign nation-​state under a king who ruled by divine right.28 In the mid-​seventeenth century, King Louis XIV of France—​the Sun King—​became famous for his claim of absolute sovereignty and the divine right of kings, best expressed by his apocryphal saying “L’Etat C’est Moi”—​“I am the State.” By the eighteenth century, rising nationalism and liberal anti-​feudalism led to the first efforts to replace Justinian’s Corpus Juris Civilis with new national civil codes. Frederick the Great of Prussia began to develop the first nation-​state vernacular civil code in the middle of the eighteenth century, although it was not promulgated until 1794. Frederick’s Code was very long and detailed: it was seventeen thousand paragraphs long and attempted to solve every legal problem such that no interpretation by judges would ever be necessary. It represented the triumph of the Enlightenment and of the Age of Reason. From 1492 until 1800, Spain, Portugal, France, and Britain all maintained colonial empires to which they spread their respective legal traditions.29 The civil law legal tradition thus took deep root between 1500 and 1800 in Latin America. A monumental figure who helped to shape continental European civil law in the mid-​eighteenth century was a French political philosopher.30 Montesquieu became celebrated for his belief in a very strict idea of the separation of powers that excluded a policy-​making role for judges and hence excluded judicial review. Historically, political philosophers who cared about liberty had always argued for mixed regimes that pitted the power of the One, the Few, and the Many against each other as did Hanoverian England with its constitutional monarch, House of Lords, and House of Commons. Montesquieu realized that hereditary monarchy and aristocracy were becoming hard to justify as Enlightenment philosophy took hold in Europe. He therefore needed to come up with a better way than the mixed regime for separating and dividing power. Montesquieu intuited what Lord Acton would later write when he said that “Power tends to corrupt, and absolute power corrupts absolutely.” His solution was to emphasize a strict functional separation of legislative, executive, and judicial power from one another. After the French Revolution of 1789, Montesquieu’s ideas became orthodox among the revolutionaries along with his rejection of a policy-​making role for judges and hence of judicial review 28 Oquendo, supra note 10, at 25–​28. 29 Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c.1500–​c.1800 (1995). 30 Montesquieu, The Spirit of the Laws (Cambridge University Press, 1989) (1748); Cesare Beccaria, On Crimes and Punishments and Other Writings (Richard Bellamy ed., Cambridge University Press, 1995) (1764).

20  The History and growth of Judicial Review, Volume 2 in constitutional law cases and even, in France, of a rejection of judicial review of executive branch, administrative law cases. From the time of Leonardo da Vinci (1452–​1519), Nicolaus Copernicus (1473–​ 1543), Sir Francis Bacon (1561–​1626), Galileo Galilei (1564–​1642), and Sir Isaac Newton (1643–​1727), a Scientific Revolution took place in the West in which empiricism and rationalism came to be greatly celebrated and some scientific ideas that had been accepted by Aristotle and other classical Greek and Roman figures were empirically shown, quite conclusively, to have been false. This Scientific Revolution, itself spurred on by the Renaissance and the Reformation, gave rise to another intellectual movement, the Age of the Enlightenment. The purpose of the Enlightenment Revolutionaries was to use reason to challenge political and moral ideas grounded in tradition and faith, and to advance the quest for knowledge in the social sciences through the scientific method. The Age of the Enlightenment began in the mid-​seventeenth century with the writings of Spinoza (1632–​1677) and John Locke (1632–​1704), and continued throughout the eighteenth century with the writings of Voltaire (1694–​1778), Diderot (1717–​1783), Montesquieu (1689–​1755), and Rousseau (1712–​1778). The Enlightenment influenced Benjamin Franklin (1706–​1790) and Thomas Jefferson (1743–​1826), and its first political expression was in the American Declaration of Independence of 1776 and in the American state bills of rights enacted between June of 1776 and 1787. The Enlightenment reached its culmination in Europe with the French Revolution and the empire of Napoleon Bonaparte. These events, in turn, gave rise to the Latin American movements for independence in the early nineteenth century. As John Henry Merryman explains, the Enlightenment Revolution in politics emphasized the following: (1) a belief in the kind of secular natural law that is expressed in the writings of John Locke and in the Declaration of Independence; (2) a belief in the inherent equality of all human beings and a repudiation of feudalism; (3) an attitude of anti-​clericalism since religion was seen as being unscientific and because the pope had tried to censor Galileo; (4) an exaggerated emphasis on rationalism and empiricism over anything that seemed reminiscent of blind faith; (5) rejection of the customary jus commune of Roman law and its replacement with new national civil codes scientifically drafted and rationally organized; (6) replacement of mixed regimes with an exaggerated emphasis on the separation of powers, understood in a very literal and ahistorical way; and (7) nationalism and a celebration of the emerging European nation-​states of France, Germany, and Italy, because these nation-​states brought with them the death of feudalism and a weakening of the Catholic Church’s ability to censor science.31 31 John Henry Merryman & Rogelio Perez-​Perdomo, The Civil Law Tradition:  An Introduction to the Legal Systems of Europe and Latin America 15–​19 (3rd ed. 2007).

The Civil Law Legal Tradition  21 All of these attitudes came to a head in the French Revolution of 1789, as Merryman and Perez-​Perdomo explain, and in the Declaration of the Rights of Man and of the Citizen that was issued that same year. The French Revolutionaries were thus believers in secular natural law; egalitarians who were determined to eliminate all vestiges of feudalism; very anti-​clerical rationalists who wanted to replace the Roman law jus commune with a rationally organized and scientific code of laws; and nationalists who believed in the separation of powers and in no judicial review and no policy-​making role for judges. Enlightenment ideas replaced the Corpus Juris Civilis in the civil law world in France after the Revolution of 1789. From France, these ideas were spread all over Europe by the invading and mostly successful armies of Napoleon, who brought the Enlightenment with him wherever he went, and then inspired the Latin American Wars of Independence, the Greek War of Independence from the Turks, the unsuccessful European Revolutions of 1848, the Italian Risorgimento, and finally the unification of Germany in 1870. As a result of the Enlightenment, feudalism was abolished throughout Continental Europe, and classical liberalism became the politically orthodox point of view. The Catholic Church was marginalized in France and elsewhere, with the Papal State being annexed by Italy, leaving the pope in control of the Vatican and not much else. It was out of this climate of exaggerated rationalism that the French Civil Code, the Code Napoleon, was born. The idea behind the new code was that it should be rational and organized and should reject the ancient Roman law traditions. The code was meant to be a utopian document that would eliminate the need for lawyers by clearly providing an answer for any legal question a layman might have. The French Revolutionaries envisioned their civil code as being a book that every family would have in their kitchen, to consult whenever a question of law arose. It would replace the family Bible. Inevitably, of course, the Code Napoleon, which was issued by the emperor in 1804, ended up looking a lot like the Corpus Juris Civilis, because that was the law under which the codifiers had grown up and with which they were familiar. Professor John Henry Wigmore calls this phase the Romanesque period in the history of the civil law because the new law was neither French “nor classic it would be Romanesque, in the same way that a Well-​known type of architecture has been termed Romanesque.”32 The Code Napoleon was drafted by a team of four superb lawyers, led by Jean-​Etienne-​Marie Portalis. The code was promulgated, however, in 1804, and similar codes grew up in other civil law countries, culminating with the great



32 Wigmore, supra note 5, at 1022.

22  The History and growth of Judicial Review, Volume 2 German Civil Code, the Burgerliches Gesetzbuch, which went into effect on New Year’s Day 1900. The German Code is much longer and more intricate than the Code Napoleon, but it tries to create a rational structure out of the jus commune of Roman law, which had been the law in the German states from medieval times up until the promulgation of the German Code. It builds on the famous scholarship of Friedrich Carl von Savigny, who drew from German Romanesque historical case law.33 The German Code influenced the Japanese and Chinese legal systems, and the French and German Codes together have influenced every civil law country, including all of Latin America,34 as well as portions of Asia, the Middle East, and Africa. All of these jurisdictions rely on some codified body of Roman law origin for their private law. Amazingly, the East Asian countries of Japan and Indonesia are civil law countries whose private law is rooted in the law of ancient Rome! Judicial case law is not a formal source of law in the civil law legal tradition, and the practice in civil law nations was to publish, at most, one unsigned opinion of the court and never to publish concurrences or dissents. The signing of majority opinions, like the publication of concurrences and of dissents, was thought to be inconsistent with the master ideal of the impersonal rule of law. There are no famous dissents in the civil law legal tradition. The Codification Movement and the Enlightenment rationalism that gave rise to it were, of course, noticed in the common law world. The U.S. Constitution and the many constitutions that have come after it are all code-​like efforts at rational planning of the institutions of government. Written constitutionalism in the United States was also inspired by the existence of written colonial charters and by the English Bill of Rights of 1689, but Enlightenment rationalism undoubtedly guided America’s founders in part when they wrote a Constitution that they believed would usher in a new order of the ages—​a novus ordo seclorum.35 Another hugely important social movement that appeared in civil law countries as a result of both the American Revolution and the Enlightenment was the movement for obtaining a written constitution. Such a constitution, like the Code Napoleon, was a way for the constituent power to plan ordinary life with regular governmental powers. The movement toward constitutionalism and its initial history in Continental Europe is brilliantly described in Dieter Grimm’s book, Constitutionalism: Past, Present, and Future.36

33 James Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change (1990). 34 Oquendo, supra note 10, at 28–​30, 33–​47. 35 See Forrest McDonald, Novus Ordo Seclorum:  The Intellectual Origins of the Constitution (1985). 36 Dieter Grimm, Constitutionalism: Past, Present, and Future 3–​157 (2016).

The Civil Law Legal Tradition  23 It must be noted, however, that when President Abraham Lincoln delivered the Gettysburgh Address on November 19, 1863, he quite accurately said that if the North had lost the American Civil War, “government of the people, by the people and for the people [would have] perish[ed] from the earth.” To be perfectly blunt about it, no European, Latin American, Asian, or African country was a democracy on November 19, 1863. In the United Kingdom, only one in seven men were eligible to vote and an hereditary House of Lords had the power to block legislation until 1911. In Continental Europe, all of the Revolutions of 1848 had failed. France was governed by the Emperor Napoleon III in 1863, and it did not become a republic until the 1870’s. The Austro-​Hungarian, Prussian, and Russian Empires dominated Europe, and they were not democracies. Italy was unified under a constitution, which the legislature could override and universal male suffrage was a long ways in the future. China and Japan were governed by Emperors, and democracy had failed in Latin America. And, even Canada and Australia were not yet Dominions within the British Empire. The North won the U.S. Civil War, and the United States by force of arms spread constitutional democracy to Germany, Japan, Italy, Eastern Europe, the Philipinnes, Indonesia, and South Korea. The United States also demanded the dismantling of the European colonial empires after 1945, and since the 1980’s the United States has supported the spread of democracy in Latin America, East Asia, and South Africa. The United States did temporarily tolerate dictators until it had won both World War II and the Cold War, but it was the constitutional democracy of the United States, which spread the Constitutionalism, of which Dieter Grimm writes, all over the world. Since the end of the Cold War, the United States has been exceptional in its role of bringing into being constitutional democracy, with checks and balances, and with judicial review. Returning to my story, the French Revolutionaries hated judges and judicial power. French judges had been allied with the Ancien Régime, and the French Revolutionaries regarded judicial power as being inherently suspect and illegitimate. Initially, after the Revolution of 1789, all questions of legal interpretation were referred directly to the National Assembly for its resolution. By 1790, the task of answering all these questions became so time consuming that the job of answering them was given, instead, to a committee of the legislature, which was called the Tribunal de Cassation, and which had no power to decide a case but only the power to break—​casser in French—​a bad legal interpretation made by a court below. Over time, the Tribunal de Cassation became the Cour de Cassation—​the Court of Cassation—​which is the highest civil and criminal law court in France, Italy, and in many other civil law countries. The French Revolutionaries so hated the judges of the Ancien Régime that they also felt it was improper for courts to hear administrative law cases,

24  The History and growth of Judicial Review, Volume 2 because a judge, in their opinion, had no business telling an executive officer how to implement the law. The French Revolutionary orthodoxy was so strict in its separation of powers that judges could only decide cases for money damages between one private party and another. Judges had no power to issue injunctions, writs of mandamus, awards of punitive damages, or to hold anyone in contempt. As a result, an entirely separate system of administrative law evolved in France and Germany and in all other civil law countries under an entirely separate supreme administrative law court. This court, in France, is called the Conseil d’Etat and was first established by Napoleon. It is technically part of the executive branch of the French government. All civil law countries today thus have a separate hierarchy of ordinary courts of cassation, or revision in Germany, and of administrative law courts. There is no single, powerful Supreme Court in the civil law world, at least outside of Latin America and Japan. The French Revolutionaries obviously did not approve of the idea of judicial review of the constitutionality of legislation, because they thought it violated the separation of powers, as they understood it, by giving judges policy-​making discretion. For this reason, when the famous civil law jurist Hans Kelsen sought to introduce judicial review and court case law into the civil law world in the 1920s, he advised the creation of a new and separate “court” called a “Constitutional Court,” which would exist side by side with the Court of Cassation and the Council of State, and which would be the only court in the country with the power of judicial review. Decisions and opinions of the Constitutional Courts in countries that have them are binding law, even though they are judge-​made case law, and they trump every other legal institution in the country because they have erga omnes effect. Dieter Grimm describes the growth of Constitutional Courts since 1945 in his splendid book already described. Again, please remember that in 1945 only the United States, Canada, Australia, and Switzerland had systems of judicial review, and the Swiss system was a very weak one. In 1945, judicial review seemed to be an artifact of the common law. It is only after 1945 that judicial review by specially designed Constitutional Courts began to appear in the civil law world. Today, civil law countries almost all have some form of judicial review by a Constitutional Court, but this is a very recent development The civil law legal tradition has evolved in some distinctive ways since Latin America achieved independence from Spain and Portugal. The Latin American countries remain part of the broader family of the civil law countries in their private law and civil codes, but they have borrowed most of their constitutional law, without success, from the Constitution of the United States. For a discussion of the extraordinarily rich and varied elements of the Latin American form of the

The Civil Law Legal Tradition  25 civil law legal tradition, see the excellent discussion in Chapter Two of Angel R. Oquendo’s book, Latin American Law.37 The civil law legal tradition is thus characterized globally by a historical reliance on Roman law; a modern rationalist code and no body of judge-​made case law under the code; textualism and formalism; the absence of jury trial and an inquisitorial approach to procedure; and a separate institution, called a Constitutional Court, which interprets and enforces the constitution and which is de facto the most important court in the country, even though de jure there are coequal courts of cassation and councils of state. Traditionally, judges received little social deference and were low on the hierarchy of status in civil law countries, whereas scholars and codifiers came first. The civil law legal tradition conceives of the separation of powers in a very wooden, ahistorical way that precludes judges from ever making policy by deciding administrative law and constitutional law cases.38

II.  The Court Systems in Civil Law Countries The hatred the French Revolutionaries had toward judges and the rigidity of their belief in a strict and formal separation of powers led to some very strange institutional consequences, which are still present in civil law countries today. Initially, the French Revolutionaries commanded that the judges could only apply the law in cases and that they could never interpret it. Anytime a law needed “interpretation,” the case was sent to the National Assembly to do the interpretation because this was seen as a legislative and not a judicial function. The National Assembly soon found itself flooded with more cases of “interpretation” than it had time to address. As a result, the National Assembly assigned one of its committees, which it called the Tribunal de Cassation, the power to interpret the laws for the benefit of the courts, but not to decide any cases. The Tribunal could “break” “casser” in French a court interpretation, but since it was a legislative committee, it could not decide a case. The Tribunal referred its “interpretations” of French law back to the French courts, which would then decide the case in light of the interpretation the law had been given. Over time, the French realized that the work the Tribunal was doing was really judicial, and so the institution was renamed the Court of Cassation, and it is the highest court in France for criminal and civil cases. The court still only

37 Oquendo, supra note 10, at 66–​127. 38 A helpful civil law casebook that covers Latin America and East Asia as well as Europe is John Henry Merryman, David S. Clark, & John Owen Haley, Comparative Law: The Civil Law Tradition in Europe, Latin, and East Asia (2010).

26  The History and growth of Judicial Review, Volume 2 “interprets” the law and leaves the disposition of cases to the lower ordinary courts. After two hearings of a case, the Court of Cassation now has the power to bind the lower courts to decide a case the way it wants the case decided. The French Revolutionary belief in the strict and formal separation of powers did not allow for the hearing of cases involving alleged wrongdoing by executive branch officers. Napoleon, realizing that such wrongdoing needed attention, created an institution called the Council of State, which over time evolved into the highest executive branch court in French administrative law. Lower executive branch administrative courts eventually emerged in France to hear initially and find facts in the cases heard by the Council of State. France thus until 1958 had two Supreme Courts: the Court of Cassation for criminal and civil cases located in the judicial branch and the Council of State for administrative law cases located in the executive branch. When France in 1958 created a Constitutional Council to hear constitutional cases, the country moved to a system where it had three coequal Supreme Courts. It is critical to note this because all other civil law countries including Germany and Italy have copied the French system and therefore have three coequal Supreme Courts. The Constitutional Courts are slowly eclipsing the Courts of Cassation and the Council of State, but only very slowly. The reader should thus know that although the common law countries including the United Kingdom, the United States, Canada, Australia, and India have only one Supreme Court, the civil law countries all have three almost coequal Supreme Courts: a Court of Cassation, a Council of State, and a Constitutional Court. In Germany, the Constitutional Court has effectively asserted supremacy over the equivalent to the Court of Cassation and the Council of State, but this has not yet happened fully in France.

Chapter Two

The Concentrated and Hybrid Models of Judicial Review The Concentrated Model of judicial review originated with the theorizing of the jurisprudence scholar Hans Kelsen1 in 1920. The Concentrated Model was formally adopted by the constitutions of Czechoslovakia and Austria, in 1920, during the years between World War I and World War II. Constitutional Courts spread all over Eastern and Central Europe after the end of the Cold War in the 1990’s. A superb discussion of Constitutional Courts appears in a book by Dieter Grimm, Constitutionalism: Past, Present, and Future.2 The Concentrated Model of judicial review is built around the idea that what judges do when they enforce constitutions and Bills of Rights is inherently political and nonjudicial. For this reason, a separate Constitutional Court is created outside the ordinary judicial system, and it is the only entity armed with the power of judicial review. The power of judicial review, which Constitutional Courts are conceived as having, is a power to make the law, and not simply to interpret it. Hence, a Constitutional Court in a civil law country is, essentially, a fourth branch of the government, and it does not exercise judicial power. In countries with Diffuse Models of judicial review like the United States, in contrast, constitutional adjudication differs from lawmaking and so all U.S.  courts—federal and state—have the power to interpret the U.S. Constitution. The contrasting premises of the two models could not be more stark. U.S. federal judges are all picked in a partisan nomination and confirmation process.

I.  The History of the Concentrated Model of Judicial Review The idea of developing a Constituitonal Court originated after World War I with the famous jurisprudence scholar Hans Kelsen. Kelson sought to make U.S.-​style 1 See also Hans Kelsen, General Theory of Law and State (Anders Weedberg trans., 2007); Hans Kelsen, Pure Theory of Law (Max Knight trans., 1967). 2 Dieter Grimm, Constitutionalism: Past, Present, and Future (2016).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0003

28  the History and growth of Judicial Review, Volume 2 judicial review and checks and balances work in civil law countries in which: (1) judges had traditionally been accorded very low social status; (2)  caselaw or precedent was not traditionally a form of law; and (3) there was a worship of the absolutely sovereign, legislature, which alone could speak for the volonté générale i.e. public opinion. Kelson realized that for Constitutional courts to work in civil law countries, they had to be:  (1) a fourth branch of the government, which could alone enforce the Constittution and which did not exercise judicial power; (2) the members of the Court had to be picked by high level politicians in an openly political way and not by the Ministry of Justice, which always picked mere bureaucrats to be judges; and 3) Constitutional Court justices would have to serve limited, unrenewable terms because of the great power they would wield. Kelson succeeded after World War I in persuading a few minor European countries to set up constitutional courts. For a discussion of Kelsen’s theory of Constitutional Courts, readers should consult Dieter Grimm’s book mentioned above.3 Czechoslovakia adopted the world’s first constitution in 1920, which provided for the creation of a constitutional court. Hans Kelsen, himself, served as a member of the Austrian Constitutional Court from 1921 to 1930. Lichtenstein in 1921 and Spain in 1931 also adopted the Kelsenian Model of judicial review right away, during the interwar years. Unfortunately, Nazism and Fascism put an end to these early experiments with constitutional courts, and Hans Kelson fled to the United States where he ended his career teaching at the University of California at Berkeley. After the Allied military victory in 1945, the newly democratized nations of West Germany in 1949 and Italy in1947 both adopted the Concentrated Model of judicial review, and, from there, the model spread to France (1958, 1971, 1974, and 2008), Spain (1978), Belgium (1980), Portugal (1982), Luxembourg (1986), the countries of Eastern Europe after 1989, some Latin American countries, and, eventually, the East Asian countries of South Korea, Indonesia, Mongolia, Taiwan, and Thailand. Constitutional Courts were also created in South Africa and in Turkey. Nineteen of the twenty-​seven countries that belong to the European Union (EU), in 2020, have concentrated systems of judicial review with Constitutional Courts. Three EU countries have highly restrained American-​style diffuse systems of judicial review—​Sweden, Finland, and Denmark; four have systems that defy easy categorization—​Ireland, Greece, Cyprus, and Estonia; the Netherlands



3

Id. at 215–​19.

The Concentrated and Hybrid Models of Judicial Review  29 has no judicial review whatsoever; and England has a Second Look system of judicial review, as I said in Volume I. The Concentrated Model of judicial review has proven to be especially valuable in protecting human rights in regimes that have recently experienced extremely serious and gross human rights violations. This helps explain the success of constitutional courts in West Germany after the Nazis were destroyed and in South Africa after apartheid came to an end. The Concentrated Model also works exceptionally well in civil law countries, where there is no tradition of judicial case law having precedential effect. See Victor Comella’s essay, “The Rise of Constitutional Courts.”4 As I said above, Constitutional Courts are essentially a fourth branch of government, and they are the only courts in a civil law countries legal system which have the power of judicial review. Accordingly, when a Constitutional Court holds a statute unconstitutional, “[t]‌he statute is effectively repealed, and no court or governmental organ is allowed to apply it. * * * Kelsen used to say that the constitutional court acts as a ‘negative legislature’ when it strikes down a law, for it does something similar to what the parliament does when it repeals a law.”5 Some Constitutional Courts, in addition, may supervise elections or referenda, or rule on the constitutionality of a political party. In recognition of their special lawmaking power, the justices who sit on Constitutional Courts are always picked in a special way through the political process. For example, in Germany, which is the archetypical Concentrated Constitutional Court Model country, half of the Constitutional Court justices are elected for twelve-​year nonrenewable terms, subject to a mandatory retirement age, by a two-​thirds vote in a secret ballot of a plenum that has to equal at least an absolute majority of the lower house of the German legislature, the Bundestag, while the other half are elected by a two-​thirds vote of the upper house, the Bundesrat. Because a two-​thirds majority is needed to elect German Constitutional Court justices, only consensus figures who are acceptable to both the Right and the Left can be elected. Moreover, an informal convention has been agreed upon that half the justices on the Constitutional Court should be chosen primarily by the parties on the right, while the other half are chosen primarily by the parties on the left. In Germany, ordinary judges are career civil servants with relatively low social status who are appointed to their judgeships by the federal or state ministers of 4 Ferreres Comella, The Rise of Constitutional Courts, in Constitutional Courts & Democratic Values: A European Perspective (Ferreres Comella ed., 2009). 5 Id. at 9.

30  the History and growth of Judicial Review, Volume 2 justice. Constitutional Court justices, in contrast, have high social status, are democratically selected by Parliament, and are much more visible than are ordinary judges. The Concentrated Model was developed by Hans Kelsen to adapt the American Diffuse Model of judicial review to some of the realities faced by countries following the civil law tradition. One of those realities, as we saw in the introduction, is the low social status traditionally enjoyed by civil law judges, and the unlikelihood that ordinary civil law judges could ever be induced to hold acts of the sovereign legislature to be unconstitutional. The Concentrated Constitutional Court Model of judicial review responds to the civil law’s traditionally hermetic understanding of the separation of powers by creating a wholly new entity, a Constitutional Court, which is for all practical purposes a fourth branch of government. The members of that entity are chosen democratically, enjoy high social status, and have the exclusive power of judicial review in their countries. Countries like Germany with Constitutional Courts typically have a judicial review clause in their Constitution, which assigns the power to interpret or enforce the constitution only to the Constitutional Court. The power of judicial review is thus not deduced from structural inference, as it was in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), but is assigned in black and white to the Constitutional Court alone. As a result, the political branches of government in Germany do not have a latent power as coequal constitutional interpreters to the Constitutional Court. Departmentalism thus does not exist in Germany or in other countries that have adopted the Concentrated Model of judicial review. The Concentrated Model responds to another feature of the civil law tradition that would otherwise make it hard for civil law countries to have judicial review. Traditionally, judicial case law or precedent has not been a formal source of law in civil law countries, that status being reserved instead for the Code. Kelsen deemed it necessary, therefore, to create a special entity—​the Constitutional Court—​whose decisions and opinions would bind everyone, including the legislature and lower and ordinary court judges, because the constitution gave Constitutional Court decisions erga omnes effect. Constitutional Court decisions and opinions thus are almost like statutes in the civil law world, in that they formally create or negate law. A Constitutional Court holding of unconstitutionality thus does not merely render a law temporarily unenforceable, it actually removes unconstitutional statutes from the statute books. In this respect, the German Constitutional Court is actually more powerful than is the U.S. Supreme Court. Constitutional Courts under the Concentrated Model hear only matters of constitutional interpretation; they do not cut their teeth on non-​constitutional issues of statutory interpretation, as does the U.S. Supreme Court. In many, but not all, countries with Constitutional Courts, like Germany, there is citizen

The Concentrated and Hybrid Models of Judicial Review  31 standing to raise an issue before the court. Other Concentrated Model countries, like Italy, do not have citizen standing. Certain German state institutions, like the länder or a minority of representatives in the legislature, can also force the court to address an issue. Finally, if a constitutional issue comes up in an ordinary civil or criminal or administrative law case, the ordinary court can stay the case, refer the constitutional questions to the Constitutional Court for it to answer, and then decide the case based on what the Constitutional Court has said. There is usually no justiciability doctrine of standing in countries with the Concentrated Model of judicial review, and also no formal political question doctrine. Constitutional Courts like Germany’s are thus in many respects more powerful and openly accountable politically than is the U.S. Supreme Court. Victor Ferreres Comella elaborates that: [a]‌s already explained, what defines the European model is the existence of a special institution—​the constitutional court—​in charge of assessing the constitutionality of legislation. This institution is granted a monopoly in this field: no other court—​not even the supreme court—​is entitled to disregard a parliamentary statute on its own authority. In many countries, ordinary judges * * * are allowed to stay the proceedings of a given case in order to make an application to the constitutional court for the annulment of a statute that they think is inconsistent with the constitution. They are not authorized, however, to disregard the statutory provision themselves.6 * * *

The closest Americans ever came to creating a Constitutional Court was the discussion, in 1787, during the Philadelphia Constitutional Convention, about whether or not the United States should have a Council of Revision, which would have consisted of the president and the justices of the Supreme Court, which could have vetoed laws on constitutional grounds. The Framers of the U.S. Constitution decided against this approach, opting instead to keep the federal courts out of the policy-​making sphere and giving the president alone a veto, which can be overridden by a two-​thirds majority of both houses of Congress. The German Constitutional Court is an interesting example of what might have happened in the United States if the Council of Revision had been created. The tradition in civil law countries was that judges ought not to sign the opinion of the court, ought not to publish concurring opinions, and ought not to publish dissents. This practice is sharply different from the practice in the common law countries of the United States, India, Canada, Australia, South Africa, and the United Kingdom where judges do sign majority opinions and



6

Comella, supra note 4, at 5–​6.

32  the History and growth of Judicial Review, Volume 2 issue concurrences and dissents. It also differs from the traditional, but now abandoned, English practice that required every judge who heard a case to deliver an opinion orally from the bench seriatim. In France and Italy, the vote of the Constitutional Court on a case is not even divulged, the opinion of the court is unsigned, and no published concurrences or dissents are allowed. This practice is defended as furthering certainty and impersonal rule of law values. In Germany, Parliament by statute authorized Constitutional Court justices to publish and sign dissents, but this is done only in unusual cases, and majority opinions are still unsigned and concurrences are not allowed. The European Court of Human Rights, which I will discuss in further detail later, allows for the signing and publishing of concurring opinions and of dissents.7 Countries with Constitutional Courts that today use the Concentrated Model of judicial review include: Albania, Armenia, Austria, Belarus, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Chile, Colombia, Democratic Republic of the Congo, Croatia, Czech Republic, Ecuador, Egypt, France, Georgia, Germany, Greece, Guatemala, Hungary, Indonesia, Iran, Italy, Kosovo, Kyrgyzstan, Latvia, Lithuania, Moldova, Mongolia, Peru, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, South Africa, South Korea, Spain, Republic of China (Taiwan), Thailand, Turkey, and Ukraine.

II.  The Hybrid Model of Judicial Review Many countries, especially in Latin America, have distinct Hybrid Models of judicial review that combine, in various ways, the American Diffuse Model of judicial review discussed in Volume I  with the existence of Concentrated Constitutional Courts that also engage in abstract judicial review. In Victor Ferreres Comella’s book, Constitutional Courts, Democratic Values,8 he says that there are such mixed systems in Peru, Guatemala, Chile, Ecuador, Bolivia, and Colombia, and that other countries have constitutional chambers within their Supreme Courts, as is the case in Costa Rica, El Salvador, Honduras, Nicaragua, Paraguay, and Venezuela. He also says that in Europe, four countries—​Ireland, Greece, Cyprus, and Estonia—​all intermingle aspects of the Diffuse and the Concentrated Models. I take as the archetypal Hybrid Model the country of Brazil, which has the fifth highest population in the world, is the fifth largest country in the world, and is an emerging economic powerhouse. Brazil has a distinct Hybrid Model that draws features from both the Diffuse and Concentrated Models. It is not a simple

7

8

For a discussion of Constitutional Courts in action, see Grimm, supra note 2, at 161–​376. Comella, supra note 4.

The Concentrated and Hybrid Models of Judicial Review  33 blending of the Diffuse and Concentrated Models, but is instead a complex and distinct model in its own right. It must, however, be understood in relation to the historical and political processes that led to its creation. I am indebted to Andre Bogossian for the discussion of Brazilian judicial review, which follows. From 1822 to 1889, Brazil was a parliamentary constitutional monarchy. The Imperial Constitution (1824) was imposed on the Brazilian people by an emperor who was, for all practical purposes, Portuguese, and the 1824 Constitution contained a “Moderating Power” (originally created by a citizen of Switzerland, Benjamin Constant) in addition to the legislative, executive, and judicial powers. The Moderating Power was a fourth, politically neutral power that was to be exercised by the emperor of Brazil in order to maintain the constitutional system and to balance the political forces in Brazil. In practice, this structure gave the emperor a great deal of power to solve all conflicts among the legislative, executive, and judicial branches of government. The monarchy and the empire were abolished in 1889, and Brazil’s first republican Constitution was drafted in 1891 by two prominent jurists, Rui Barbosa and Prudente de Morais (who later became the third president of Brazil). The 1891 Brazilian Constitution was greatly influenced by the U.S. Constitution, and the new republic was called the United States of Brazil (Estados Unidos do Brazil). This name persisted until it was changed in the 1960s. The unitary parliamentary four-​branch monarchy was replaced with a federalist presidential three-​branch separation of powers republic with individual rights, separation of church and state, checks and balances, presidential impeachment, and a Diffuse Model of judicial review. Much like the Diffuse Model of judicial review in the United States, under this system, trial courts, appellate courts, or the Supreme Federal Court—​in any legal proceeding—​could judicially review and strike down statutes that violated the Brazilian Constitutions (of 1891, 1934, 1937, and 1946). Decisions could be challenged on appeal, but the final word on constitutional questions would be that of the Supreme Federal Tribunal (Supremo Tribunal Federal—​STF). The main difference between the Brazilian Model of judicial review and the U.S. model during this period was the absence of a system of stare decisis to coordinate judicial decisions. This raised huge problems of legal certainty and of the rule of law, because the Supreme Federal Tribunal’s decisions did not constrain lower courts, even in everyday cases. One important change was made to this system in Brazil’s Constitution of 1934. The federal government acquired the power to intervene in state affairs when a state: (1) failed to maintain a republican form of government and (2) violated the separation of powers or the rules of electoral representation or term limits to elected positions. The Union government could only intervene in these cases after the Supreme Federal Tribunal had struck down the state’s behavior

34  the History and growth of Judicial Review, Volume 2 in these areas as unconstitutional, under Brazil’s 1934 Constitution. This system thus turned what would be in the United States pure political question doctrine cases into legal and constitutional matters—​justiciable in court. This began the transformation of the STF into a Constitutional Court. In 1946, an amendment was passed that gave the Supreme Federal Tribunal original jurisdiction over abstract cases that challenged the unconstitutionality of state and federal statutes, and over other normative acts as well. The prosecutor general (appointed by the president) was the only official with standing to ask for abstract judicial review. As a result, the military governments in Brazil in the 1960s, 1970s, and 1980s controlled access to the Supreme Federal Court, which might otherwise have questioned their violations of the military constitution, imposed in 1967. Under the current 1988 Constitution of Brazil, the Supreme Federal Tribunal is “three-​courts-​in-​one.” First, it is not only a Supreme Court of last instance in cases and controversies, like the U.S Supreme Court on which the Supreme Federal Tribunal was modeled, but it also has some of the powers of a European-​ style Kelsenian Constitutional Court. It also has original jurisdiction over certain specific categories of cases like disputes between states, as well as over any criminal charges made against the president, the members of the Congress, or the Cabinet ministers (article 102, I). In light of this broad jurisdiction, it is perhaps not surprising that since 1988, the Supreme Federal Tribunal has decided more than one million cases! Most cases reach the Supreme Federal Tribunal as a last instance appellate court through the diffuse system of control, via the “Extraordinary Appeal,” a kind of appeal that can only be submitted when the matter discussed is of a constitutional nature. No matters of facts or questions concerning the interpretation of only statutes can be reviewed. Only appeals that deal with constitutional interpretation can be heard, as well as those exceptional cases that deal with conflicts between local and federal law. In an attempt to reduce the number of cases sent to the Supreme Federal Tribunal, Constitutional Amendment 45 was passed in 2004, creating a requirement that cases heard by the Supreme Federal Court must be important to society generally, and not only to the parties to the case (article 102, paragraph 3). The Brazilian Diffuse aspect of judicial review, as mentioned before, allows any court in Brazil—​including the lower courts—​to exercise the power to strike down unconstitutional laws or actions in the regular course of deciding a case. In any proceeding (with the exception of Concentrated Model proceedings), court decisions (even when made by the Supreme Federal Court) on the constitutionality of a norm have only inter partes effect, which means that they only affect and bind the parties to the case, and do not bind other courts through stare decisis or

The Concentrated and Hybrid Models of Judicial Review  35 even the same court in other cases. This problem has been addressed, but so far without success. One effort to cope with the absence of a system of stare decisis was the introduction of the idea of a “Binding Precedent Summary,” which was accomplished by the Judiciary Reform effectuated by Amendment 45, which was adopted in 2004. After repeatedly issuing decisions on a particular legal question in ordinary cases, the Supreme Federal Tribunal can now, by a vote of two-​thirds of its members, enact a summary that binds lower courts and administrative bodies. The enactment of such a summary is undoubtedly a mechanism of constitutional enforcement that reveals some tension between the legislative and the judicial powers over who gets to make policy, and raises a question as to whether the Supreme Federal Tribunal is only a “negative legislator” (in Kelsen’s words), or a complex political actor with the power to enact new positive legal norms. Parallel to the Diffuse Model, the Brazilian legal order has borrowed features from the Concentrated Model of judicial review that allow the Supreme Federal Tribunal—​operating as a Constitutional Court—​the power to strike down norms in abstract judicial review proceedings, even in the absence of a concrete case or controversy. Concentrated Model decisions of the Supreme Federal Court have erga omnes effect, meaning that they absolutely bind all the organs of the judiciary and even of the executive and legislative power. Although a law that is struck down using the Concentrated Model of judicial review is considered to be null and void and is therefore extirpated from the legal order, the legislature can re-​enact statutes with similar content. The first and most common feature of the Concentrated Model of judicial review in Brazil is the Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade—​ADI). The ADI can only be used to strike down state and federal norms that were enacted after the 1988 Constitution went into effect. It cannot be used to strike down any of the country’s statutes and norms enacted prior to the adoption of the 1988 Constitution. The 1988 Constitution expanded the number of persons authorized to file ADI Actions before the Supreme Federal Tribunal (article 103), so that now the president, the Senate, the Chamber of Deputies, the state and federal district assemblies, the state and federal district governors, the prosecutor general, the Brazilian Bar Association, political parties represented in Congress (at least one senator or one deputy), and nationwide labor unions or professional bodies all share the prosecutor general’s standing to initiate abstract constitutional review proceedings. The proceedings require an opinion from the chief attorney general—​usually defending the validity of the norm, which is also a corollary of the presumption of constitutionality—​and an opinion from the prosecutor general.

36  the History and growth of Judicial Review, Volume 2 Contrast the Direct Action of Unconstitutionality with a second kind of Concentrated Model form of judicial review, the Declaratory Action of Constitutionality (Ação Declaratória de Constitucionalidade—​ADC). This constitutionally authorized mechanism allows petitioners who can seek an ADI to also seek an ADC. ADI petitioners ask the court to strike down statutes, while ADC petitioners may ask the court to uphold them. The ADC was introduced into Brazilian constitutional law by Amendment 3 of 1993, as a way of stabilizing Brazil’s Hybrid Model of judicial review. Whenever there is a major controversy over the validity of a state or federal norm, with contradictory decisions from lower and appellate courts, the Declaratory Action can be used to force the Supreme Federal Tribunal to resolve the controversy. Another distinctive feature of Brazil’s Hybrid Model of judicial review is the Fundamental Precept of Non-​ Compliance Complaint (Arguição de Descumprimento de Preceito Fundamental—​ADPF), which is based on the German system of Constitutional Complaints (Verfassungsbeschwerde) and on the Spanish system’s Recurso de Amparo, all of which are meant to protect fundamental constitutional rights. The concept of what counts as a “fundamental precept” is disputed, although the Supreme Federal Court tends to consider the following to be “fundamental precepts”: the republican form of government; the presidential system of government; the federal system of government; fundamental principles listed in articles 1 through 4 of the 1988 Brazilian Constitution (such as popular sovereignty, human dignity, political pluralism, and separation of powers, among others); fundamental rights listed in articles 5 through 17 (individual, social, and political rights); principles whose violation allows federal intervention (article 34, VII); and the entrenched unamendable clauses of the Constitution (article 60, IV). An ADPF complaint can be brought up before the Supreme Federal Tribunal by the same persons and entities that can file either Direct Actions of Unconstitutionality or Declaratory Actions of Constitutionality. ADPF proceedings allow a more ample scope of judicial review than other Concentrated Model proceedings, since they can be used to review the country’s norms and, most especially, any laws and decrees adopted prior to the 1988 Brazilian Constitution. ADPF complaints are, however, a subsidiary form of a legal claim, so that they can only be brought if there is no other effective way of obtaining the protection of the fundamental precept. As for the temporal effects, in both the Diffuse and in the Concentrated aspects of the Brazilian system of judicial review, decisions of unconstitutionality apply retroactively, making the invalid norm void since its enactment, as in the U.S. system, and not merely from the date of the decision. In Concentrated proceedings, though, the Supreme Federal Court can, by a vote of two-​thirds of

The Concentrated and Hybrid Models of Judicial Review  37 its members, modulate the effects of the decision that strike down a norm. The court can thus issue opinions that do not apply retroactively, and can even give effect to one of its decisions at a given moment in the future. Lastly, the Brazilian system of Hybrid judicial review applies to unconstitutional failures to act, as well as to unconstitutional actions. There are matters where the Constitution itself requires that some entity take actions, so the Constitution has within it mechanisms to cope with legislative or even executive failures to act. The Brazilian courts have inherited from the Diffuse American Model of judicial review the power to issue “writs of injunction” (Mandado de Injunção). It must be added, however, that these injunctions only partially resemble their U.S. progenitor (because injunctions in Brazil always require and never restrain an action). In summary, Brazil’s Hybrid Model of judicial review consists of a very complex system full of institutional mechanisms that are meant to enforce the Constitution. The Brazilian system combines features from both the Concentrated and the Diffuse Models—​and even some unintentional twists of a Second Look Model, if we consider the Senate’s power to decide whether to suspend or not the efficacy of a norm deemed unconstitutional under the Supreme Federal Court’s diffuse decisions (article 52, X), and Congress’s power to re-​enact a statute with similar content to one struck down by the Supreme Federal Court, or even pass an amendment contrary to a previous set of decisions.

III. Conclusion Judicial review of the constitutionality of legislation and of executive branch action has only existed in the civil law countries since 1945. It is not premised, as is common law Diffuse Model judicial review on the idea that a country’s written constitution is supreme law, which like all other laws can be applied by any court in a country’s court system. Instead, the Concentrated Model of Constitutional Court judicial review of the constitutionality of legislation was invented in the interwar years by the great scholar Hans Kelsen. Kelsen sought to develop a model of U.S.-​style judicial review, which would work in civil law contries with courts of casation and councils of state by creating a specially selected Constitutional Court, which alone has the power of judicial review. Constitutional Courts are seen as being a fourth branch of government that does not exercise merely judicial power. Members of Constitutional Courts are selected in a special highly political process for fixed and staggered terms. Their decisions are, in effect, like a statute and have erga omnes effect and stare decisis effect on the ordinary courts in a country’s court system.

38  the History and growth of Judicial Review, Volume 2 The Hybrid Model of judicial review exists principally in Latin America. It gives Supreme Courts both the powers of diffuse judicial review and of Concentrated Constitutional Court judicial review. Hybrid judicial review has transformed the Supreme Courts or Tribunals of both Brazil and Mexico into hyperactive interventionist courts.

Chapter Three

The Federal Republic of Germany The Federal Republic of Germany is today one of the most successful constitutional democracies in the world. 1 Its constitution served as a model for some Eastern European countries after the fall of communism and was adopted in 1949—​m ore than seventy-​one years ago. 2 It is impossible to overstate the importance and influence that the German Constitution has had on the world. It is probably now more influential, in some ways, than is the 231-​year-​old U.S. Constitution under which Germany is militarily defended thanks to the power of U.S. presidents and the U.S.’s two party system. For reasons I will explain in this chapter, the Germans call their constitution “The Basic Law.” The definitive English language treatment of German constitutionalism is found in Donald P. Kommers and Russell A. Miller’s book, The Constitutional Jurisprudence of the Federal Republic of Germany. 3 Germany is the fifth most population dense of the G-​2 0 nations, and, according to the United Nations (UN), it ranks 58th out of more than 200 nations in population density. It has the 17th highest GDP per capita in the world, behind the United States, which is 10 th among the G-​2 0 nations. Most important of all, for the purposes of this book, the German system of judicial review of the constitutionality of legislation has been accepted by virtually all of the civil law countries in the world as being the one that is the most compatible with their legal system. German constitutionalism has thus not only heavily influenced the Constitutions and systems of judicial review of Eastern Europe. It has also been a key influence on new Constitutions and systems of judicial review in Spain, Portugal, South Korea, Brazil, South Africa, Mexico, and Indonesia. Moreover, most of the countries of Latin America have now superimposed German-​style Concentrated judicial review on the Diffuse systems of judicial review they borrowed from the United States in the nineteenth century. They have done this by designating their Supreme Courts to be

1 David P. Currie, The Constitution of the Federal Republic of Germany (1994). 2 Dieter Grimm, Constitutionalism: Past, Present, and Future (2016). 3 Donald P. Kommers & Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (3rd ed. 2012).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0004

40  the History and growth of Judicial Review, Volume 2 also Constitutional Courts. This has resulted in the emergence of Hybrid judicial review in those countries. Over 60  percent of the world’s people today live in legal systems in which the civil law tradition plays a prime role as compared to only about 35 percent who live in legal systems in which the common law tradition plays a prime role. German judicial review and constitutionalism is thus an exemplar to most of the people in the world and to all of the world’s people who live in civil law countries. The United States may have gotten judicial review started, but it is Germany that is responsible for getting judicial review started and growing in most of the countries all around the world from 1949 right on down to the present day. The Framers of the first post-​1945 German Constitution had many interrelated goals in mind when they decided to create a German Constitutional Court. First, a secondary reason why Germany’s constitutional Framers explicitly created the German Constitutional Court and gave it the power of judicial review was so that it could umpire disputes over federalism, separation of powers, and individual rights, as Professor Martin Shapiro argues. As I will explain, umpiring was very much a secondary and not the primary reason for the creation of the German Constitutional Court. The Constitutional Court was given the exclusive power to interpret and enforce the German Basic Law (aka the Constitution of the Federal Republic of Germany) so that the political branches of the German government play essentially no role at all in constitutional enforcement in Germany unlike the system of departmentalism in the United States. The German Constitutional Court’s jurisprudence from its creation down to the present day supports the conclusion that the German Constitutional Court is an active umpire in federalism disputes, in separation of powers disputes, and more recently in individual rights cases. The need for a federalism and separation of powers umpire was a secondary, contributing factor to the birth and growth of modern German judicial review. The real cause of the creation of the German Constitutional Court, and of the Basic Law itself, was the rights from wrongs impact on German constitutionalism of the Holocaust and of Nazi totalitarian rule under Adolf Hitler. Germans were determined to write a democratic constitution, unlike the Weimar Constitution, which the the Nazis overthrew in 1933, which would prove to be durable and very rights protective. Seventy-​one years later, we can happily say that Germany’s constitutional framers wildly exceeding anyones hope and expectations in 1949. As a result of Hitler’s defeat by the Allied powers in World War II, West Germany was occupied by very large numbers of American, British, and French troops, and they sought to bring about what Professor Ackerman calls a revolution on a human scale in Germany.4 This revolution was not indigenous to 4 Bruce Ackerman, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law (2019).

The Federal Republic of Germany  41 Germany but was imposed by Allied Armies using brute force. The Allies cooperated, when they could, with local Germans who had opposed Hitler, but they also carved up the mega-​state of Prussia into many little pieces; the Allied powers insisted that the Germans write a strongly federal constitution; and the Allied powers insisted that the German Basic Law, as Germany’s constitution is called, include a regime of checks and balances and of judicial review. The German Basic Law, as Germany’s Constitution is called, is what Professor Bruce Ackerman calls an elite construction of German elites and of Allied military commanders.5 Professor Ackerman identifies three pathways that can be followed in creating a nation-​state and a constitution. The first is the revolutionary pathway whereby charismatic leaders, assisted by a charismatic movement party, overthrow an old regime, write a new constitution, and set up judicial review to enforce that constitution after revolutionary leaders have left the scene. Germany does not in any way fit the revolutionary model. Second, Professor Ackerman argues that new nation-​states may be formed and write a constitution as a result of an elite bargain. Germany does fit the elite bargain model. Third, Professor Ackerman argues that some nation-​states and constitutions come into being through an evolutionary process as happened in Canada and Australia. Once again, Germany does not fit the evolutionary constitutional model. We are confronted therefore with a German Basic Law and Constitutional Court, which was solely the result of an elite bargain by local German elites, who kept the German people in the dark about what they were doing, and by Allied military elites who sought to have some influence on the German constitutional end result. What this means is that the German Basic Law and Constitutional Court enjoys no legitimacy as a result of a mandate from the German people or from charismatic leaders or charismatic mass hegemonic movements. The Basic Law has been legitimized in practice by Germany’s stunning economic and political success since 1949 and by its leadership role in the European Union. One test of a Constitution’s legitimacy is whether people are fleeing the constitutional jurisdiction or are flocking to live there. In Germany’s case, millions of people are trying to move into and not out of Germany. This helps to prove that whatever legitimacy defect the German Basic Law had in 1949 that defect has now been definitively resolved. The German people like and approve of the Basic Law, and public opinion polls routinely show that the German Constitutional Court is the most popular institution in the country.



5

Id.

42  the History and growth of Judicial Review, Volume 2 The key thing to know about the German Basic Law, with its ample bill of rights, and about the emergence of the German Constitutional Court as the lead player in German life, is that it is all what Alan Dershowitz has called a rights from wrongs reaction to the Holocaust and to Nazism.6 It is Dershowitz whose work best explains the origins of the Basic Law and of the German Constitutional Court. These horrors led Germans to create a novel Basic Law with a system of checks and balances, a written Bill of Rights, and judicial review. This was all done after Hitler’s defeat under the watchful eyes of a very large number of American, British, and French troops. American troops remain stationed in Germany in 2020 to protect Germany from conquest by Vladimir Putin’s thugocracy in Russia, a regime which cannot feed its people but which is working on building robot armies and hyper-​sonic nuclear missiles.

I. History Germany was historically a confederation of principalities under the loose central governance of the Holy Roman Empire. The Holy Roman Empire of the Germanic nation existed as of 800 A.D., but after the Reformation and the Peace of Augsburg in 1555, an important change took place. Some of these principalities were Protestant while others were Catholic. The Peace of Augsburg established the principle of Cuius regio, eius religio (“whose region, his religion”), which meant that German states with a Protestant prince would be Protestant and those with a Catholic prince would be Catholic. In 1618, a Catholic Holy Roman Emperor tried to impose Catholicism on all the German states, but the Protestant states successfully resisted this effort, and, in 1648, the Peace of Westphalia was signed, which established the sovereignty of the individual states within the Holy Roman Empire, and their right to practice their own religion. Through a process of trial and error during the Thirty Years War (1618–​1648), all the German states learned to live together, each practicing their own faith within the Holy Roman Empire. The very idea of federalism and of differing federal approaches to law is thus very deeply rooted in German history and tradition.7 Federalism most often succeeds, in my opinion, in countries with religious differences among the states as in Germany, the original 13 United States, Switzerland, Canada, and the European Union, as well as the Council of Europe’s

6 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005). 7 Walter F. Murphy & Joseph Tanenhaus, Comparative Constitutional Law: Cases and Commentaries (1977).

The Federal Republic of Germany  43 European Court of Human Rights. Federalism fails in nations with sharply different regional histories but religious uniformity such as Italy, Brazil, Mexico, South Africa, and Australia. Countries like India and Israel with small religious minorities have quasi-​federal regimes with the states in India and the West Bank in Israel. Federalism has always worked in Germany because it has long been divided between Protestants, Catholics, and a growing number of people who are secular. To its credit, Germany has been very welcoming to Islamic immigrants, which is very much not the case in France. The idea of constitutionalism in Germany developed much more recently in Germany than did the ideas of federalism and religious tolerance, as Dieter Grimm’s book on constitutionalism shows. The word “constitution” in Germany in the 17th and early 18th Centuries had a double meaning. First, it was an empirical term referring to the state of a country such as its population, geography, power structure, or legal structure. Second, if the term “constitution” was used at this time, it had a normative meaning because it meant an imperial law. After the defeat of Napoleon, in 1815, a very loose confederation of thirty-​ nine German states came to replace what had been before Napoleon’s time the Holy Roman Empire. Between Napoleon’s surrender in 1815 and the Revolutions of 1848, a number of Southern German Principalities adopted written constitutions. Professor Dieter Grimm argues that between 1788 and 1798, the word “constitution” as used in German dictionaries had morphed from meaning only imperial law into a word that meant “the embodiment of fundamental state laws.”8 As Professor Dieter Grimm cautiously explains in his brilliant book Constitutionalism: Past, Present, and Future: autonomous constitutions emerged [in Germany] following the end of the Napoleonic era. Their common characteristic is that they were voluntarily granted by the monarchs in the interest of dynastic preservation. Their legal validity thus derived from the will of the ruler. As a consequence, the latter’s right to rule preceded the constitution and was not founded on it. The German constitutions thus lacked the constitutive element that is characteristic of modern constitutions. These constitutions related solely to the exercise of rule and therefore were similar to the older legal bounds of rule. They resembled modern constitutions, however, in the way in which they regulated the exercise of power. Unlike the older contractual bonds, they set out to comprehensively regulate the exercise of rule. *** They regulated the relationship between the monarch and the people. They were based on the concept



8

Grimm, supra note 2.

44  the History and growth of Judicial Review, Volume 2 of a separation of state and society ***. There existed *** fundamental rights that justified an autonomy that, while limited, possessed scope for expansion and that were only subject to state interventions with the consent of society in the form of acts of parliament. Even though the monarch had granted the constitution voluntarily, he was no longer able to shake off those bonds at will.9

In March 1848, a popular uprising in the German states led eventually to the adoption of a Frankfurt Act, which was Germany’s first real Bill of Rights. A Frankfurt Constitution followed a year later providing for a bicameral legislature with one house representing the people, and the other the states. The 1848 Constitution broke with the principle of monarchical sovereignty and was based instead on popular sovereignty. It also provided for a Constitutional Court, inspired by the U.S. example. Dieter Grimm, in Constitutionalism: Past, Present, and Future, shows that: Following the promulgation of modern constitutions in its western neighbors, the term “Konsitution” in Germany loses its old meaning of imperial law *** [and], acquires the meanings of ‘constitution of the state’, ‘constitutional contract’, ‘form of government’, or ‘fundamental law.’ The change is both rapid and extensive.10

The German Confederation that was created eventually gave way to the Constitution of the German Empire after 1871. Constitutionalism: Past, Present, and Future11 says that after the French Revolution, only traditional rulers could agree, for whatever reason to limitations on their powers. The German Bismarckian Constitution of 1871 lacked a revolutionary basis and was a top-​ down effort by Bismarck to found a new state in which all power would be in the monarch, called the kaiser. The 1871 Imperial German Constitution created a two-​house legislature in which all power rested in the upper house, which represented the German states. The lower house represented the German people, but it essentially lacked power to do anything. In this respect, then, the Imperial German Constitution of 1871 was not really a constitution in the modern sense of that word.

9 Id. at 60. Grimm discusses extensively the evolution in meaning of the word “Constitution” in Germany on pages 95 to 113 of his splendid book, which I urge you to read. 10 Id. at 95. 11 Id. at 20–​21.

The Federal Republic of Germany  45

A.  The German Empire Germany became a unified nation-​state only, in 1870, when Prussia defeated France in the Franco-​Prussian War and acquired Alsace and Lorraine as part of the peace arrangements.12 From 1870 until the end of World War I, the German Empire—​dominated by Prussia—​governed Germany, although the country retained elements of federalism. It is important to emphasize that in 1871, 60 percent of the German population lived in the Land of Prussia. The German Empire was thus a highly asymmetric federalism in which Prussia towered over all of the other German länder. After World War II, the victorious Allied powers carved Prussia up into a lot of little pieces. The emperor of the German Empire or “Kaiser” (which means “Caesar” in German) governed through a chancellor who served at his pleasure and who chaired the Bundesrat—​the upper house of the German Parliament in which the German state officials served to represent state interests. Sixty percent of this house represented Prussia alone, which had had a highly militant history. The lower house of Parliament—​the Reichstag—​was popularly elected by universal male suffrage, but was less powerful than the upper house. However, no law or budget could be passed without its consent so the Reichstag did have at least some power. In addition, the electoral districts used a first-​past-​the-​post majority system in territorial units that were badly malapportioned to overrepresent rural communities and to underrepresent urban areas. The empire was militaristic, autocratic, and dominated by Prussian landowning Junkers. There were no constitutional or individual rights under the Constitution of Imperial Germany. Ironically, the Constitution of Imperial Germany served as the model for the Meiji Constitution of Japan, which governed that country from November 29, 1890, until May 2, 1947.

B.  The Weimer Republic The German Empire was overthrown after Germany lost World War I and was replaced, in 1919, by the Weimar Republic, which represented Germany’s first attempt at true democratic governance. The history of the Weimar Republic is discussed extensively in Dieter Grimm’s book on constitutionalism cited earlier.13 The Weimar Republic marked the end of Germany’s authoritarian past, which was embodied in the German Imperial Constitution of 1871.



12 13

Martin Kitchen, A History of Modern Germany: 1800 to the Present (2006). Id. at 89, 120, 122, 130, 152, 164–​65, 167, 180, 216.

46  the History and growth of Judicial Review, Volume 2 As Germany transitioned from an empire into a republic after World War I, judicial review was made available in theory under the Constitution of the Weimer Republic, which governed Germany from 1919 until 1933. German judicial review existed in a form from 1919 until 1933, which bears some similarities to aspects of the jurisdiction of a modern Constitutional Court. The Weimer Republic Constitution of 1919 created a special court, called the Staatsgerichtshof, to decide certain constitutional issues.14 “Its jurisdiction included (1) the trial of impeachments brought by parliament (the Reichstag) against the president, the chancellor, or any federal minister for willful violations of the constitution; (2) the resolution of differences of opinion concerning a state’s administration of national law; and (3) the settlement of constitutional conflicts within and among the separate states as well as between states and the Reich.”15 The Staatsgerichtshof was limited to deciding federal disputes and umpiring a few minor conflicts. The prevailing view during the Weimar Republic was that judicial review was incompatible with democracy. This had, of course, been the widespread belief all over Continental Europe since the French Revolution. There were no constitutional or fundamental rights that could be protected by courts at this time. The Weimar Constitution, however, unfortunately suffered from a number of flaws, which turned out in the end to be fatal. First, the Weimar Republic used a radical form of proportional representation as its electoral law, which led to a huge multiparty system and many, very unstable coalition governments. The Weimar Republic had twenty-​one governments in fourteen years, and for ten of those years, the governments were minority governments. The Weimar Republic also used government by referendum, which proved to be destabilizing. By the 1930s, the German Communist Party and the National Socialist “Nazi” Party between them controlled a majority in the Bundestag, and they could and frequently did vote governments out of office, even though they could not agree on a successor. Weimar Germany was a democracy in which less than half the citizens were democrats. A second fatal flaw was that the Weimar Republic set up a powerful president modeled on the kaiser, who could dissolve Parliament and call for new elections whenever he wanted. As a result, no Parliament elected under the Weimar Republic ever served a full term. Moreover, the president had sweeping emergency powers, which presidents frequently used to govern, since Parliament could not produce a stable government. The president of the Weimar Republic invoked his Article 48 emergency powers 250 times in fourteen years. Emergency presidential government thus became the norm and not the exception.



14

15

KOMMERS & MILLER, supra note 3, at 4-​5. Id.

The Federal Republic of Germany  47 The first president of the Weimar Republic was Friedrich Ebert, who was a committed democrat; but the president from 1925 until 1934 was Paul von Hindenburg, a former Prussian field marshal, who was re-​elected in 1932 at the age of eighty-​four, even though he was in very poor health, because he was the only candidate at the time who could defeat Adolf Hitler. Hindenburg played a supporting but key role in Hitler’s rise to power. Nonetheless, it should be noted that Hitler’s Nazi Party won the democratic elections of 1933 and elected him chancellor, that is to say, prime minister, of Germany. In March 1933, the German Parliament passed an Enabling Act whereby it transferred all of its legislative and treaty making powers to Hitler and his cabinet. This Act shows the need in constitutional law for a non-​delegation doctrine. Hitler governed under the Enabling Act with absolute power until President von Hindenburg died in office of natural causes. At that point, Hitler declared the end of the Weimar Republic, the beginning of the Third Reich, and his own status as Führer, or dictator, over all of Germany. It is critical to note that Hitler was a validly elected prime minister of Germany who made himself a dictator and not the president of Germany. The failure of the Weimar Republic was thus a failure of a parliamentary and not a presidential, separation of powers regime. Third, the Weimar Constitution was construed to allow a two-​thirds majority of the Reichstag to “break” the Constitution by enacting laws that otherwise would have been unconstitutional. It became the norm to pass such laws. This explains how, in March 1933, Hitler was able to persuade the Reichstag to delegate all of its legislative power through an Enabling Act to himself and his cabinet.16 The Weimar Republic’s institutional flaws were severely aggravated by the humiliating Peace Treaty of Versailles, which ended World War I, and by various economic crises. The German military from the outset blamed German democrats for the loss of World War I, claiming that they had been stabbed in the back by democrats, which caused them to lose a war they should otherwise have won. The treaty was seen as especially humiliating because it required Germany to pay huge reparations that it could not afford, forbade Germany from maintaining a full military, and deprived Germany of Alsace and Loraine, while demilitarizing the areas of Germany close to the French border. The Weimar Republic was also delegitimized by a ruinous hyperinflation during its early years, which wiped out everyone’s savings. The misuse of referenda also destabilized the Weimar Republic causing modern-​day Germany

16 For a brilliant general discussion, see Juan J. Linz, The Breakdown of Democratic Regimes: Crises, Breakdown, and Reequilibration (1978). See also Cindy Skach, Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic (2005).

48  the History and growth of Judicial Review, Volume 2 to shun referenda. The republic briefly stabilized its finances in the mid-​1920s, but was then devastated by the U.S. stock market crash of 1929, and the Great Depression, which began that same year. The adoption of protective trade tariffs, like the U.S. Smoot-​Hawley Tariff Act of 1930, and the ensuing retaliatory trade tariffs adopted by other countries, hugely aggravated the Great Depression. Moreover, the U.S. government responded to the 1929 stock market crash by pursuing a sharply deflationary policy with respect to printing paper money at a time when economists like Milton Friedman and Ben Bernanke argued it should have been pursuing an inflationary policy. The resulting sharp deflation in the United States helped to spread economic misery all over the world. Even the new and well-​meaning president, Franklin D. Roosevelt, was clueless as to the monetary policy causes of the Great Depression in the United States. The Great Depression in the United States from 1929 on created a fertile climate in which extremist groups like the Nazis could flourish. Hitler’s rise to power led, of course, first to the Nazi dictatorship of the Third Reich, then to World War II, and ultimately to the Holocaust. The German Red Cross estimates that 7,375,800 German soldiers and civilians died in World War II. In contrast, the number of American casualties in both the Atlantic and Pacific military campaigns in World War II is estimated to be about 1,076,245. Approximately 6  million Jews, including 1.5  million children, died in the Holocaust. This represented the death of two-​thirds of the 9 million Jews who had lived in Continental Europe prior to the Holocaust.

C.  Allied Military Occupation of Germany After the complete and total military annihilation of the Nazi regime and its leaders, Germany was divided into four military occupation zones controlled by the Allied powers. This plan was agreed upon at the Yalta Conference between the Americans, the British, and the Russians, and it was confirmed at the Potsdam Conference held by the three Allied powers in Potsdam, Germany, in August of 1945. The Allies agreed that even though the French had been only minimally involved in the winning of World War II, they would be allowed a fourth military occupation zone in Germany. As Justin Collings writes, “The Allies’ occupation policy was to be guided by four ‘D’s: demilitarization, denazification, decentralization, and democratization.”17

17 Justin Collings, Democracies Guardians:  A History of the German Federal Constitutional Court, 1951–​2001 xvii (2015).

The Federal Republic of Germany  49 The American general in charge of the American occupation zone of Germany was General Lucius D. Clay who reported directly to the supreme Allied commander, General Dwight David Eisenhower. General Clay reports that: It was at Yalta that the Allied Powers formulated their purposes with regard to Germany: to destroy Nazism and militarism to ensure that Germany would never again disturb the peace of the world, to disarm and disband Germany’s armed forces, to break up the General Staff, to remove all war equipment, to eliminate or control industry having war potential, to punish war criminals, to exact reparations for the destruction wrought by the Germans, to wipe out the Nazi party, laws, and institutions, and to remove Nazis and militaristic influences from public office and from cultural and economic life. [General Clay adds that] Although it does not appear in the agreement, [he was] of the opinion that it was [at Yalta] that [Americans] accepted the principle later formally agreed at Potsdam of the expulsion of persons of German origin from the areas of postsurrender Germany and their resettlement in Germany. This led to a substantial increase in the population of western Germany and created a new and difficult problem of absorption.18

The Allied powers’ ethnic cleansing of all Germans living in Eastern Europe outside the new, and much reduced, territory of Germany led to a situation where the number of German refugees from Russia, Poland, the Sudetenland, and Austria was, by the West German government’s estimation, as high as fourteen million people. The West German government estimated that two million Germans died as a result of the resettlements and the harsh food and medical situations that existed at this time. This was a human rights and economic catastrophe of enormous proportions. I mention these enormous logistical hurdles and the influx of fourteen million ethnic Germans from Eastern Europe, which was “ethnically cleansed of Germans” to illustrate the enormous demos-​creation process, which Allied military commanders faced in 1945 to 1946. The division of Germany into four Allied power occupation zones, which did not coincide with traditional German state boundary lines, augmented the demos-​creation difficulties. The three militarily successful Allied powers—​the United States, England, and the Soviet Union—​took steps early on to retain but to revamp completely German federalism. The State of Prussia existed de jure until its formal liquidation by the Allied Control Council Enactment No. 46 of February 25, 1947. The liquidation of Prussia, which had a deeply entrenched, history and militaristic tradition, and which comprised 60  percent of prewar 18 Gen. Lucius D. Clay, Decision in Germany: A Personal Report on the Four Crucial Years that Set the Course of Future World History 12 (1950).

50  the History and growth of Judicial Review, Volume 2 Weimar Germany was an absolutely essential first step in the creation of a peaceful and democratic German Federal Republic. In 1947, General Clay, who was the supreme commander in the U.S.  zone of occupation, called for the unification of the U.S. and British zones to facilitate free trade and the recovery of the German economy. The Russians and the French, unfortunately, were not prepared at this time to go along. General Clay reported to his superiors in Washington, DC, an outline of what he thought the postwar structure of Germany should look like. His report bears quotation:

a. Germany should be a federal state composed of between 9 and 15 states, organized either by economic areas or by traditional political divisions. Each of these states would be politically autonomous ***. b. The constitution must contain the essentials of democracy, to wit: All political power must originate with the people and be subject to their control; there must be frequent reference of programs and leadership to popular elections; elections must be held under competitive conditions in which there are at least two competing parties. *** [German State constitutions must meet these criteria as well].19

Postwar German federalism was to look quite different from prewar German federalism. Under the Weimar Republic, there were twenty German states, including Prussia with 60  percent of the national population, all of which had deep historical roots and sets of identity. In contrast, in modern-​day reunified Germany, there are only sixteen states and only four states that existed under the Weimar Republic continue to exist as states today: (1)  Bavaria, (2)  Hesse, (3)  Thuringia, and (4)  Bremen. In other words, the Allied powers and the German Christian Democrats and Social Democrats completely redrew the map of German federalism, eliminating seventeen of the twenty Weimar Republic states. This complete reshuffling of German federalism was in part made to ensure that a militaristic, dictatorial Germany like Imperial Germany under Kaiser Wilhelm II or like Nazi Germany under Adolf Hitler would never emerge again, and it was also in part due to the very arbitrary way in which the boundaries between the United States, the British, the French; and the Russian zones of occupation were drawn up. From very early on, the United States and the British wanted to merge their zones, but the French and the Russians would not go along. In addition to four occupation zones in Germany, the Allied powers agreed to allow there to be four occupation zones in Germany’s capital city of Berlin. To gain this hold on Berlin,



19

Id. at 76.

The Federal Republic of Germany  51 which had been conquered totally by the Soviet Union, American troops had to remove themselves from huge swaths of what became East Germany, which the Americans had conquered, never imagining the Cold War or the Soviet blockade on shipments of food and fuel to West Berlin that would soon come about. General Clay, in the American zone of occupation, immediately started to identify and to appoint trustworthy Germans to run city and county political entities while at the same time engaging in denazification. The Nuremberg Trials of the crushed Nazi survivors were held between November 1945 and October 1946. The Tribunal was given the task of trying twenty-​four of the most important political and military leaders of the Third Reich. The most important Nazi leaders, having seen the brutal execution of Benito Mussolini, committed suicide. Thus, Adolph Hitler, Joseph Goebbels, Heinrich Himmler, Robert Ley, and Hans Krebs all died at their own hands. Herman Göring was convicted at Nuremberg, but he committed suicide the night before his execution. Adolf Eichmann fled to Argentina but was captured by the Israeli intelligence forces and was hanged in 1962. The Nuremberg Tribunal handed down a total of fifteen sentences to death by hanging, several sentences of life imprisonment, and several other lengthy sentences as well. In addition, separate trials of those involved in the Holocaust yielded more death sentences and other punishments. Of the four “d’s,” denazification was pursued ruthlessly and thoroughly as the crimes committed demanded such punishment. The Americans were even harder on the former Nazis than were the Russians in their zone of occupation. General Clay observes, however, that just as much early progress was made on the “d” of democratization in the American occupied zone. Thus, the first free German elections in the states were held in the American zone German states in January 1946—​a mere eight months after the Nazi surrender. Eighty-​six percent of the population of the American zone German population participated in this election. County elections were held on April 28, 1946, and, in May, city council elections were held with 80 percent of all eligible German voters participating.20 The U.S. and British military zones of occupation were merged into a bi-​zone on January 1, 1947. The French, but not the Russians, merged their zone of occupation into the U.S. and British zones when a federal Constitution of Germany was ratified by two-​thirds of the parliaments of the West German states in May 1949. The Allied military governors approved the commencement of work on a draft for a new German Constitution in July 1948. The state parliaments of Germany, which were then functioning in the U.S., the British, and the French



20

Id. at 87–​89.

52  the History and growth of Judicial Review, Volume 2 zones, then elected what was called a “Parliamentary Council” to write what would be called a “Basic Law” for the federal governance of all of West Germany. German constitutional law experts from the three major German political parties, assembled at Herrenchiemsee to help the Parliamentary Council in writing the new Basic Law. The Allied powers wanted: (1) a constituent assembly, (2) a new constitution, and (3) a referendum approving the constitution. The West Germans declined to hold the referendum because they did not want the new polity to appear as being anything more than temporary and provisional. Referenda had also been used to disastrous effect in Weimar Germany, although not by Hitler, and the West Germans therefore disfavored them. The Russians boycotted all of these proceedings and instead set up a communist client state with its capital in East Berlin in the portions of Germany that were within the Soviet Union’s occupation zone. The Parliamentary Council insisted on calling its new document “The Basic Law” instead of the Constitution because they anticipated it would be a temporary document pending reunification with East Germany at which point the entire German people would write a new Constitution of Germany. There was thus an enormous Ackermanian demos-​creation project in the 1940s as fourteen million persons of German blood were expelled from the other countries of Eastern Europe with two million casualties resulting; Austria, which is a German-​speaking nation, was permanently separated from the rest of Germany; the traditional German state boundaries were almost all redrawn either by Allied or German interest groups; and the U.S., British, and French occupation zones were combined to create West Germany. Eventually, the collapse of communism allowed demos creation to be completed in 1990 with the reunification of West and East Germany.21 During the Cold War era, the former imperial capital of Berlin was divided between West and East Germany, and the communists built a wall through the center of the city as well—​dividing West Berlin from East Berlin—​to prevent people from leaving East Germany for a better life in the West. The Berlin Wall fell on November 9, 1989, and on October 3, 1990, East Germany reconstituted itself as six states, or länder, and the East German Parliament, elected in March 1990, accepted the West German Constitution, known as the Basic Law of 1949, as the Constitution of all of Germany. The East German Parliament agreed to the merger of East and West Germany, and it then abolished itself—all by an exercise of the treaty power. There are several observations to be made drawing on Professor Ackerman’s work in Revolutionary Constitutions about the Allied military



21

See Ackerman, supra note 4.

The Federal Republic of Germany  53 occupation, the redrawing of German state boundary lines, the limits the victorious allies imposed on German Constitution drafters, and the massive movement of peoples from Eastern Europe to West Germany, as well as the campaign of denazification undertaken by the allies coupled with the Nuremberg Trials. Professor Ackerman quite rightly in Revolutionary Constitutions identifies the Constitutions of India and of South Africa as being revolutionary. They were. But, it is important to note that what happened in West Germany between 1945 and 1949 was quite a bit more violent and revolutionary than what happened when India became independent in 1947 and when South Africa elected Nelson Mandela as president in 1994. The trial and punishment of those Nazi leaders who did not commit suicide before May 1945 is without parallel in India or South Africa. No British imperialists and no advocates of apartheid were tried and sentenced to death or to life imprisonment in India, in 1947, or in South Africa, in the 1990s. There was violence in both of those countries and many people died, but there was no equivalent to the Nuremberg Trials. Second, there was an intensive Allied campaign to purge the German bureaucracy and courts of Nazis whereas there was no such campaign in India or in South Africa. In fact, India made no personnel changes at all to its court system, its bureaucracy, or its armed forces. South Africa made fairly minimal personnel changes in the 1990s. The Allies’ campaign of denazification was thus more revolutionary than anything India or South Africa engaged in. Third, the Allies’ redrawing of German state borders is without parallel in India or South Africa. India, did, itself redraw state boundary lines to eliminate the princely states, but this was a domestic effort not dictated by a foreign occupying army. Finally, the displacement of millions of Germans from Eastern Europe to West Germany, with huge loss of life, does find a parallel with what India experienced in 1947 as a result of partition with Pakistan. This also emphasizes how revolutionary, albeit on a human scale, Allied military orders were with respect to the German people between 1945 and 1949. The bottom line is that the Allied occupation of Germany led to what was in effect a military revolution on a human scale for the German people. Moreover, all of these aspects of the Allied military occupation of West Germany happened after Allied firebombing during World War II had totally destroyed German industry, much of German residential housing, and many places of cultural significance. The elite leaders of the Parliamentary Council who drafted the Basic Law, under close Allied supervision, must have been a very cautious and shaken group of people. As Ackerman says:

54  the History and growth of Judicial Review, Volume 2 Allied occupation of Germany wasn’t quite as omnipresent as it was in Japan. But it was still overwhelming. [The Americans, the British, and the French] told [sympathetic German elites] to send representatives to a Parliamentary Council, which would submit the Constitution for approval at a referendum. By insisting on a popular vote, the Allies aimed to safeguard the new Constitution against later charges of inauthenticity.22

When “the Parliamentary Council rejected this demand” saying that only a wholly reunified Germany could draft a constitution, the allies “found it prudent to back down.”23 Nonetheless, [the allies] were right in believing that [the lack of a referendum] exacerbated their authenticity problem. A leading scholar Donald Kommers, reports, ‘Opinion polls showed that *** a majority of the respondents were not even aware of the Parliamentary Council’s existence. In May of 1949, a survey found that two-​thirds of them were not sure what the Basic Law was.’ [Kommers] rightly concludes that in losing the chance to approve the Basic Law, ‘West German voters were depriv[ed] of the knowledge they might have gained *** had a popular campaign for ratification taken place.’24

Professor Ackerman calls this an astonishing case of “collective amnesia” in Germany, which has been papered over by the huge economic success, which Germany has gone on to achieve both as a nation-​state and as the pillar of the European Union.25 It certainly illustrates what Professor Ackerman rightly calls “the elitist origins of German constitutionalism.”26

D.  Writing the Basic Law The Allies strongly encouraged West German democrats to set up a federal state and to adopt judicial review, but most German democrats were already so inclined anyway. Ironically, the federal United States did not ask for a lot of German federalism. That request came instead from the unitary nation-​states of the United Kingdom and France, which remembered the Franco-​Prussian War of 1870–​1871 as well as World Wars I and II.



22

Id. at 19. Id. Id. at 19–​20. 25 Id. at 20–​21. 26 Id. at 21. 23 24

The Federal Republic of Germany  55 The Allies ordered the German states to elect a “Parliamentary Council” and not a “Constitutional Convention” that was authorized to draw up a “Constitution.” The choice of language here was deliberately demeaning. The fact that the “Parliamentary Council” was ordered into being by Allied troops rather than being summoned into being by the German people was evident to all. In an act of defiance, the Parliamentary Council insisted on calling the document it produced “The Basic Law,” arguing that a full German Constitution could only be drafted after East Germany had been reunited with West Germany. Thanks to the Parliamentary Council, the German people were not even asked whether or not to ratify the Basic Law in a referendum, and few even knew what the Basic Law was. The Basic Law ultimately went into effect after being ratified by two-​thirds of the German states, whose borders the Allies had completely redrawn. As Justin Collings writes, “A spectre haunted the Council’s deliberations—​the spectre of the collapse of the Weimar Republic.”27 The main sticking point in the end between the German “Parliamentary Council,” which drew up the Basic Law, and the three Allied military commanders, who were governing their respective zones of military occupation and who had to decide whether or not to accept the Basic Law, was over how “federal” the new Basic Law had to be. This was the third “d” of decentralization. The Christian Democrats in the “Parliamentary Council” favored federalism, but the Social Democrats were opposed. A January 1949 draft of the Basic Law was opposed by the U.K. and French Allied commanders on the ground that it created an overly centralized German government, although the United States was satisfied with the amount of federalism in the Basic Law.28 The division among the Allies remained present on April 25, 1945, when General Clay, himself, personally wrote language limiting federal power to tax the German states without Bundesrat approval, which was significant because the Bundesrat was to consist of high-​ranking German state officials and was the upper house of the German legislature.29 All the Germans attending the constituent German assembly, including the Social Democrats, wanted the new state of West Germany to be a federal state. The conflict with the British and the French was merely over the degree of federalism. The Germans accepted General Clay’s deal; the Parliamentary Council ratified the Basic Law on May 8, 1949; and the requisite number of two-​thirds of the states ratified the Basic Law such that it went into effect on May 12, 1949. Referenda as a form of ratification or of national lawmaking were ruled out, because of the disastrous experience with such referenda during the Nazi period.

27

Collings, supra note 17, at xv.

29

Id. at 433–​34.

28 Clay, supra note 18, at 421.

56  the History and growth of Judicial Review, Volume 2 Democracy and nationhood had finally returned to the people of West German after the long Nazi nightmare of 1933–​1945. Formal military occupation also then came to an end. The Constitution was called the Basic Law as I said earlier because it was intended to be a temporary document that would govern only until German reunification occurred, at which time it was supposed that a new, all-​German Constitution would be written. In practice, the Basic Law was so successful that it was retained with minor amendments when Germany reunified. East Germany had abolished its länder state governments and so they were re-​created as six länder, which then simply accepted the amended Basic Law as their new constitutional document. The new post-​unification German Basic Law declares that all Germans now live under its rule and that reunification is now therefore complete. Professor Ackerman writes that “The authenticity problem arose again in 1989” when East Germans wanted to merge with West Germany. Many Germans at that point called for the long-​dreamed of all-​German Constitutional Convention, which would write a truly German Constitution, which would be ratified by the voters.30 The chancellor of Germany at the time, was Christian Democrat Helmut Kohl, who Ackerman says did not want “a lot of East German communists and West German leftists to enter into a constitutional assembly to challenge the legitimacy of his government.”31 Chancellor Helmut Kohl engineered German reunification in a treaty between West and East Germany, under which East Germany would establish state governments that would become part of West Germany after which East Germany would cease to exist. This elite bargain worked flawlessly yet as Ackerman complains, “Germany has managed to forget the fact that in both 1949 and 1989, its political elite refused to place the Constitution before the voters for their considered judgment.”32 How then do we account for the creation and growth in German judicial review, which is quite evident since 1949, and how do we account for the enormous legitimacy the Basic Law and the German Constituitonal Court enjoy today? The legitimacy of the Basic Law and of the Constitutional Court are the fruits of seventy-​one years of good government and of economic growth. As I  said above, millions of people want to move from the Islamic world to Germany, but no Germans want to emigrate. The origins of the German Basic Law and Constitutional Court are due to a response to the evils of Nazism and the Holocaust for what Professor Alan Dershowitz calls rights from wrongs reasons. Thus, the Basic Law begins in Articles 1 to 20 with a comprehensive Bill of Rights

30

Ackerman, supra note 4, at 20. Id. 32 Id. 31

The Federal Republic of Germany  57 headed off by a right to Human Dignity. The main reason the Basic Law and the Constitutional Court were created after World War II was a rights from wrongs process. The Basic Law is only secondarily concerned with the umpiring of federalism and separation of powers cases. The result of the constitution-​drafting process of the 1940s was the creation of a Constitutional Court that is uniquely German and that draws on Hans Kelsen’s model of a Constitutional Court, as used in Austria and in Czechoslovakia during the 1920s, although Kelsen himself did not favor judicial review of laws to determine their compatibility with fundamental rights. That expansion of Constitutional Court jurisdiction is Germany’s own creation borrowed from the judicially enforceable U.S. Bill of Rights. Kelson’s Constitutional Courts during the interwar years in Czechoslovakia and Austria heard only federalism and separation of powers claims. Germany innovated, and it created the modern-​ day Constitutional Court, which reviews laws in light of their conformity with fundamental rights. Germany grafted an American idea onto its Kelsenian Constitutional Court. The creators of the German Basic Law and of the German Constitutional Court did mean to entrench an ideology of constitutional democracy and to prevent a return to Nazism. But, they accomplished this goal by creating a federalism and separation of powers and Bill of Rights umpire that could also protect individual rights as a result of a rights from wrongs process. The Christian Democrats sought neither to entrench Christianity nor to forbid democratic socialism nor for that matter an economic system of laissez-​faire. The federal structure of Germany policed by the Constitutional Court was the thread that connected the new post–​World War II Court with the pre-​Nazi German historical experience going back to the days of the federalist Holy Roman Empire. The Basic Law begins with a very strong German Bill of Rights, which absolutely guarantees human dignity in Article I.  This clause is declared to be unamendable in Article 79(3). The German Basic Law’s emphasis on the centrality of Human Dignity as its cornerstone right echoes the Universal Declaration of Human Rights of 1948, which also in Article 1 makes Human Dignity its cornerstone right. The Basic Law and the Universal Declaration of Human Rights are the West’s response both to Nazism and Fascism and to the communism of Joseph Stalin and Mao Ze Dong. From the 1940s onward, the protection of Human Dignity has been a core job for Constitutional Courts. The creation of a powerful Constitutional Court to enforce the German Bill of Rights and the Basic Law is another departure from the Weimar Regime, which had only a slight power of judicial review in its Weimar Supreme Court. The Constitutional Court is a state institution that has exclusive power to give final interpretations of the Basic Law and to issue opinions with erga omnes effect, which are binding on all state actors. The idea for such an institution originated

58  the History and growth of Judicial Review, Volume 2 with the famous legal theorist Hans Kelsen, who devised the institution originally to provide for federalism judicial review in Austria and Czechoslovakia shortly after World War I. The German Constitutional Court has been a pioneer in the development of proportionality review, which it has exported to Canada, South Africa, and Israel.33 The German Constitutional Court was created for rights from wrongs reasons in the wake of the Nazi experience and the Holocaust. The Basic Law signals a sharp and striking break with Germany’s authoritarian past. The character of the Federal Republic of Germany as being a federal democratic state was constitutionally guaranteed in a provision of the Basic Law, which was declared to be unamendable in Article 79(3). The Basic Law was a radical change-​inducing document and not a Hirschlian hegemony-​preserving document, although it did preserve and build on Germany’s history as a federal state. The Basic Law was meant to radically change German culture, and it fully succeeded in doing so. In fact, it was the German Christian Democratic Party and the Social Democratic Party that were the main driving force behind post-​1945 German constitutionalization, and the Christian Democrats were a new force in German politics in the 1940s. The Social democrat Carlo Schmid was an important figure in the constitution-​drafting process. The Christian Democrats and the social democrats were emphatically not a failing, preexisting elite that sought by hegemonic preservation to cling to power, as Ran Hirschl’s theory of what gets judicial review started would suggest. In fact, the Christian Democrats were a rising hegemonic elite that dominated German politics throughout the 1950s and 1960s and who have alternated in power with the Social Democrats from 1970 until the present day. The Basic Law was also not adopted because two coequally matched political parties wanted “insurance and commitment,” as Tom Ginsburg would predict. It was adopted because General Clay ordered the “Parliamentary Council” into existence and because he ordered the Council to ratify a federalism-​protecting draft, one clause of which he personally wrote. Germany’s Constitutional Court is distinctive in the degree to which it is decentralized. It is a separate fourth branch of government, independent from the ordinary German judicial system, with the sole function and power of interpreting and applying the constitution.34 Laws are not presumed to be constitutional, in the German Constitutional Court, the way they are, in the U.S. Supreme Court, because neither the legislature nor the executive has a coequal power to the courts to engage in constitutional interpretation. As a result, the 33 Aharon Barak, Proportionality:  Constitutional rights and Their Limitations (2012). 34 Currie, supra note 1, at 27.

The Federal Republic of Germany  59 German Constitutional Court does not defer as much to the political process as does the U.S. Supreme Court. German judicial review is like U.S. judicial review on steroids. The German Constitutional Court has in fact struck down more than six hundred laws, since 1949. It is internationally respected for the quality of its opinions and holdings. The German Constitutional Court consists of two chambers of eight members each, which are called senates. Each judicial Senate functions independently from its sister Senate, although the two senates may consider constitutional questions together on rare occasions. Half the members of the German Constitutional Court are elected by a two-​thirds majority of the Bundesrat, which represents the German länder, and the other half are elected by a two-​thirds majority of a plenum of the Bunsedstag, which represents the German people. For a long time, a two-​thirds vote of a committee of the Bundestag elected its half of the Constitutional Court justices, but this system was recently amended to provide for a two-​thirds vote of the whole Bundestag on its half of the Constitutional Court justices in a plenum. As I  said before, the drafting of much of Germany’s Basic Law, including the provisions that led to the birth of the Constitutional Court, occurred at the Herrenchiemsee Conference at Lake Chiemsee, Bavaria, in the Allied zones of military occupation after Hitler’s defeat in 1945. While the Allied military governors of occupied Germany ordered the Germans to draft a new constitution for the American, British, and French zones of occupied Germany, the Basic Law and its Constitutional Court were not foreign institutions imposed on a “reluctant nation.” The Allied military forces kept their requests as to the new German Constitution at a very high level of generality, asking only for constitutional recognition of federalism, democracy, a constitution, judicial review, and individual rights. Dieter Grimm writes that the Germans themselves chose to protect not only classical liberal negative rights against the states but also affirmative entitlements to state action in social rights.35 In ordering the drafting of Germany’s Basic Law, the Allied military forces were quite aware of the fact that only a constitution that was mainly drafted by the Germans would work in the long run. The Basic Law and the Constitutional Court were charged with policing constitutional law so that Basic Law would emerge as being uniquely German.36 Germany’s Constitutional Court, the Bundesverfassungsgericht, became operational in 1951 after a two-​year negotiation among the various German political

35 Grimm, supra note 2, at 25. 36 The German Basic Law and the German Constitutional Court are discussed in Grimm, supra note 2, at 21, 25, 33–​34, 85, 90, 96–​97, 111–​13, 116, 127, 133, 152–​53, 161, 164–​66, 169, 171–​74, 176, 180, 184, 189, 210, 216, 233–​48, 255, 259, 267, 274, 276–​79, 281, 28–​86, 288–​90.

60  the History and growth of Judicial Review, Volume 2 parties. The Federal Constitutional Court Act represents the final compromise that establishes the Constitutional Court. Additionally, the court is empowered by various articles of the Basic Law added in 1951. The German Basic Law states first that the Constitutional Court shall exist, and then it states, explicitly, what sorts of cases the court shall decide. Article 91 lays out the federalism umpiring role of the Constitutional Court by empowering it to serve as the final arbiter of a number of constitutional disputes. Article 91 states: (1) The Federal Constitutional Court shall decide: 1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of the highest federal organ or of other participants accorded independent rights by this Basic Law or in the Standing Orders of the highest federal organ; 2. in cases of difference of opinion or doubts on the formal and material compatibility of federal law or Land law with this Basic Law, on the compatibility of Land law with some other federal law, on the application of the Federal Government, and a Land Government or of one-​third of the members of the Bundestag; 3. in cases of differences of opinion on the rights and duties of the Federation and the Länder, particularly in the execution of federal law by the Länder, and in the exercise of federal supervision; 4. on other public law disputed between the Federation and the Länder, between different Länder or within a Land, insofar as appeal to another court is not provided for; 5. in all other cases provided for in this Basic Law.

The word “Land” is the German equivalent of a province or state. The plural form of “Land” is Länder.37 In addition to the delineated disputes mentioned, Article 91 further expands the reach of the Constitutional Court by granting it jurisdiction over all other disputes assigned by the federal legislature. It states: “(2) Furthermore, the Federal Constitutional Court shall act in cases otherwise assigned to it by federal legislation.” In addition to the broad grant of jurisdiction given to the Constitutional Court in Article 91, the Framers of the Basic Law delineated several other circumstances where the court is authorized to decide on constitutionality. In all these cases, the German Supreme Court functions as what John Hart Ely would have described as an umpire of the political process.38 The Framers of the German Constitution 37 Constitution, Basic Law for the Federal Republic of Germany, Article 93 (U.S. Department of State 1949 English Translation). 38 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).

The Federal Republic of Germany  61 thus specifically granted to the Constitutional Court the power to review the forfeiture of basic rights (in Article 1); the constitutionality of political parties (review power pursuant to Article 21[2]‌); election results (review power pursuant to Article 41[2]); impeachment of the federal president (review power pursuant to Article 61); disputes between high state organs (review power pursuant to Article 93 [I] I); federal-​state conflicts (review power pursuant to Articles 93 [I] 3 and 84 [4]); intrastate constitutional disputes (review power pursuant to Article 99); public international law actions (review power pursuant to Article 100 [2]); state constitutional court references (review power pursuant to Article 100 [3]); applicability of federal law (review power pursuant to Article 126); other disputes specified by law (review power pursuant to Article 93 [2]); and constitutional complaints (review power pursuant to Article 93 [I] 4a and 4b). Additionally, the court conducts abstract (Article 93 [I] 2) and concrete (Article 100 [I]) judicial review. Germany in 1955 adopted a law that circumscribed the power of the Constitutional Court significantly.39 The Constitutional Court’s role as an umpire in federalism and separation of powers cases, as well as deciding in individual rights cases, is thus very clear-​cut. The text of the Basic Law explicitly makes the Constitutional Court an umpire in federalism and separation of powers cases, and it is widely recognized by scholars that the Framers of the Basic Law deliberately created a national Constitutional Court that could safeguard the democratic political process, protect minorities and women against the abuse of power, and safeguard individual liberties. The Constitutional Court is explicitly given the power to mediate disputes between the federal and state governments, disputes among the several states, and disputes between the branches of the national government. As Dieter Grimm points out, the Constitutional Court protects not only fundamental rights but also the powers of different state institutions.40 This is a broader conception of the judicial role than one finds in the United States. For over half a century, the German Constitutional Court has vigorously exercised the power of judicial review in all these areas of structural constitutional law including by vigorously enforcing federalism limits on national power and by striking down unconstitutional delegations of legislative power. This federalism and separation of powers umpiring has been moe vigorous since 1949 than any such umpiring during that period by the Supreme Court of the United States. In addition, the German Constitutional Court ensures that all acts of the German government, from the impeachment of a federal president, to the passage of a statute in the legislature, are in line with the Constitution of Germany. Scholars agree that that the Framers of the Basic Law meant to create

39

40

Grimm, supra note 2, at 140. Id. at 266.

62  the History and growth of Judicial Review, Volume 2 a Constitutional Court that would vigorously exercise the power of judicial review. A  half-​century of the Constitutional Court’s case law shows that the Bundesverfassungsgericht has fulfilled its role as the guardian of the Basic Law and an umpire among all parties interested in constitutional rights in the Federal Republic of Germany. The German Constitutional Court was created, however, not only as a post-​ Holocaust rights from wrongs body and not only because Germany needed a federalism and separation of powers umpire. The German Constitutional Court is also part of an elaborate German system of checks and balances, which differs from the U.S. system of checks and balances, but which works quite well nonetheless. The idea of creating checks and balances in the Basic Law may have been fortuitous or it may have been a distinctly German borrowing of U.S.  checks and balances, including judicial review as filtered by Hans Kelsen into a Constitutional Court. But, I need first to describe some of the other institutions created by the German Basic Law to show how checks and balances works in Germany to augment the power of the Constitutional Court. First, the Basic Law constitutionalizes Germany’s commitment to what can only be called by an American, like myself, a working system of checks and balances. It does this first by constitutionally protecting German federalism in the Basic Law. Article 20 of the Basic Law protects the federal structure of Germany, and Article 79(3) declares Article 20 to be unamendable in this respect. German federalism, in turn, is reflected in the fact that Germany has a bicameral legislature: länder officials sit in the Bundesrat, but the more powerful house of the German Parliament, the Bundestag, is selected directly by the people and normally has about 598 members. The länder have between three and six votes depending on the size of their populations, but they can only cast these votes uniformly and not individually. If there is a coalition government in a Land, as is frequently the case, the whole coalition must decide how to cast the Land’s votes in the Bundesrat or they may not be cast at all. The existence of meaningful bicameralism in Germany, along with federalism, are very meaningful checks and balances. Second, Germany’s Basic Law protects checks and balances through its electoral system. The Framers of the Basic Law deliberately left the question of what electoral system to adopt to the political process. The electoral system that emerged in modern Germany is a hybrid between majority territorial voting and proportional representation, although it leans much more in the direction of proportional representation. German proportional representation is modified by three additional constraints, all of which check and balance well known weaknesses of proportional representation in other constitutional democracies. First, a party must receive a threshold of at least 5 percent of the vote nationwide to be represented in Parliament at all. This

The Federal Republic of Germany  63 threshold has kept the number of parties represented in the Bundestag lower than would have been the case in the Weimar Republic, and it has kept most but not all right-​wing and left-​wing extremists out of the Bundestag. Second, only parties that are committed to democracy are allowed to compete in German elections. The Constitutional Court has the checking and balancing power, by a two-​thirds vote, to ban unconstitutional political parties. It used that power in the 1950s to ban both a neo-​Nazi party and a Communist Party from participation in democratic politics. Third, and finally, German proportional representation is checked and balanced by the requirement that only constructive votes of “no confidence” in the chancellor can succeed in changing the government. A constructive vote of “no confidence” is one that names the individual who is to replace the chancellor. In other words, Nazi-​communist agreements like those that brought down governments of the Weimar Republic will only succeed if they name who the new chancellor is going to be, as well as voting the old chancellor out of office. A third important check and balance in the Basic Law is the division of the executive power between the chancellor, who is head of government; and the president, who is a ceremonial head of state. The president is not directly elected by the people, as was the case under the Weimar Republic, but is picked indirectly by a federal-​ state convention every five years, and can only be re-​elected once.41 The president has no decree lawmaking power of the kind exercised by the French president and power to appoint Constitutional Court justices like the Italian president. The president also has no power to declare states of emergency as did the president of the Weimar Republic who used this power to such disastrous effect. Minorities of 25 percent in the Bundestag can investigate the government. Notwithstanding the German president’s lack of power, the stripping away from the Chancellor of the Head of State role reduces her to being merely a politician in the eyes of German voters. A fourth important check and balance in the Basic Law is that the Bundestag has a functioning system of legislative oversight committees. The bureaucracy is also empowered and has some independence from the government. Germans federal laws are overwhelmingly implemented by state executive officials who may be from a different political party coalition than the one in power at the federal level. This greatly adds to the independence of the bureaucracy. A fifth important check and balance is that each of the sixteen Land governments has its own elected government, which may be of a different political makeup from the federal government. Moreover, the Land governments often hold elections at a different time from federal elections, and, as in the United States, the party coalition, which wins non-​federal year elections is almost always the party that is out of power at the federal level. When the right is in

41

Currie, supra note 1, at 135–​36 n.172.

64  the History and growth of Judicial Review, Volume 2 power at the federal level, the left wins all the state elections and when the left is in power at the federal level, the right wins all the state elections. As a result, if the Constitutional Court rules against the federal government, there will almost certainly be some elected Land governments cheering it on as in the United States. The bottom line then is that the Basic Law so thoroughly divides and allocates power among different institutions such that the Constitutional Court has a lot of political running room in which to decide its cases in a way the justices think is correct. The political structure of the Basic Law is hospitable to assertions of Constitutional Court power because there is almost certainly somewhere in the German government where the court can find political support. The most striking feature of the Basic Law is its Bill of Rights, which appears in Articles 1 to 20. This Bill of Rights is a rights from wrongs reaction to the Nazi historical experience and the Holocaust. Article 79(3) makes the right to Human Dignity in Article I an unamendable feature of the German Basic Law. Since the right to human dignity arguably embraces all of the subsequent rights in the German Bill of Rights, an argument could be made that most or even all of the German Bill of Rights is unamendable. The rights from wrongs aspect of the German Basic Law is its central and most important feature. It is greatly admired, and the German Constitutional Court is greatly admired. The German Basic Law has now been in place from 1949 to 2020, and Dieter Grimm explains public support for it as following from the long period of economic growth from 1949 to 2020, which is attributed in part to the stability and certainty, which the Basic Law has fostered by reducing the risk factor in making investments. In contrast, the Weimar Republic was fairly or not associated in the public mind with hyperinflation and with the Great Depression of the 1930s. The Basic Law’s adoption on the ashes of the Nazi horror and the Holocaust clearly led to Germany being welcomed back into the society of civilized nations. Germany’s economic and libertarian success, while maintaining a social democracy revealed the system of the Basic Law to be a superior alternative to East German communism. Citizen standing to lodge complaints with the Constitutional Court made citizens feel empowered in a way they never had before. And, all of these things together gave the Basic Law extraordinary legitimacy, even if it had emerged originally as being only an elite bargain.42

E.  Bicameralism in the Federal Republic of Germany I feel I should say more now about the distinctively German system of bicameralism, which is set up by the Basic Law and which is an important part of

42

Grimm, supra note 2, at 152.

The Federal Republic of Germany  65 the distinctively German system of checks and balances, which we have been addressing and which I think gives the Constitutional Court political space to act. The house of the German legislature, which represents the German states, is called the Bundesrat, and it is a very powerful institutional player, even after the federalism reforms adopted by Germany in 2006 and 2009. The Bundesrat—​ or Federal Council—​long predates the Constitution of the Federal Republic of Germany, and has its roots in the federation of kingdoms, principalities, and cities of the Holy Roman Empire. Imperial Germany, between 1871 and 1918, had a Bundesrat, and the Weimar Republic had a Reichsrat in which the German states were represented. When German federalism was revived after World War II so as to prevent the rise to power of future Hitlers, the Bundesrat came to play an even bigger role than it had in the interwar years. The Bundesrat is unique among the bicameral houses of the G-​20 constitutional democracies in that it consists of “the prime ministers and other cabinet members of the sixteen states forming the federal republic.”43 The länder—​or German States—​receive between three and six votes in the Bundesrat depending on the size of their populations. Professors Donald Kommers and Russell Miller explain: [T]‌hese delegations to the Bundesrat represent the Lander in their corporate capacities and not the people directly. This means that each state’s delegation is drawn from the respective Land government, and the membership of a state’s delegation typically changes []as a result of a change in the cabinet due to Land elections. The Bundesrat is a truly federalist institution ***”44

Professor Patzelt adds that “[c]‌omposed of members of the sixteen länder governments, the Bundesrat knows no legislative terms; it sits permanently. Its members are appointed and recalled by their respective state governments so that the composition of the Bundesrat changes when the partisan composition of state governments does.”45 Each of the sixteen länder have one vote in the Bundesrat and that vote can only be cast as a unit. The number of votes a länder can cast varies between three and six depending on the länder’s population, but the votes must be cast as a unit. Coalition governments in the länder must negotiate over how the Land’s vote in the Bundesrat will be cast. “The Bundesrat wields a suspensive veto over

43 Id. at 60. 44 Kommers & Miller, supra note 3, at 110. 45 Senates:  Bicameralism in the Contemporary World 67 The Very Federal House: The German Bundesrat 59, at 67, by Werner J. Patzelt (book chapter) (Samuel C. Patterson & Anthony Mughan eds., 1999).

66  the History and growth of Judicial Review, Volume 2 legislation generally and an absolute veto over all legislation affecting the vital interests of the Länder.”46 Kommers and Miller add that: It is no longer rare for the two houses to split along partisan lines. In the early 1960’s, for example, a conservative Bundestag (and federal government) squared off against a Social Democratic Bundesrat. In the early 2000’s, the situation was reversed. By 2011 the roles had switched again, with Chancellor Merkel’s conservative-​liberal government and parliament confronted with a Social Democratic majority in the Bundesrat.47

Just as U.S. presidents tend to see their parties lose seats in midterm elections, so too does the chancellor of Germany’s Party tend to lose control of state governments during state elections held between federal elections. This has the effect of empowering the opposition by augmenting its strength in the federal Bundesrat.48 The phenomenon of U.S. presidents losing congressional seats, state governorships, and state legislative seats in U.S. midterm and off-​year elections is explained in a law review article by Steven G. Calabresi and James Lindgren, “The President: Lightening Rod or King?”49 The Bundesrat in some ways resembles the U.S. Senate prior to the adoption of the Seventeenth Amendment, which provided for direct popular election of senators, but it is even more federalist than the U.S. Senate ever was between 1789 and 1913 in that state officials actually hold federal seats in the Bundesrat ex officio, and can be instructed on how to vote by a state. Another notable difference is that state officials in the Bundesrat can be expelled by a state. In contrast, U.S. senators have always had a fixed six-​year term of office and could never be instructed as to how to vote in the Senate. In addition, the Bundesrat picks half of the sixteen Constitutional Court judges on its own by a two-​thirds vote. The other half are picked by a two-​thirds majority of the lower house of Parliament—​ the Bundestag. Perhaps because of the Bundesrat’s role in picking German Constitutional Court judges, the court has been very protective of German federalism and has augmented the role played by the Bundesrat. Kommers and Miller explain that: [b]‌ y jealously guarding and in some instances broadly interpreting the Bundesrat’s consent power, the Constitutional Court helped to transform the

46 Kommers & Miller, supra note 3, at 114. 47 Id. 48 Senates, supra 45, at 85. 49 Steven G. Calabresi & James Lindgren, The President: Lightening Rod or King?, 115 Yale L.J. 2611 (2006).

The Federal Republic of Germany  67 Bundesrat from the mere checking institution that it was in the 1950’s and 1960’s into one of the most powerful institutions in the Federal Republic.50

By the year 2000, well over half of all legislation required Bundesrat consent, usually because of its impact on the states’ powers to administer federal law. In the early 2000s, Gerhard Schroder’s Socialist Party/​Green Party coalition government was blocked by the Bundesrat from pursuing economic and labor-​ market reforms.51 This led to complaints of reform gridlock—​Reformstau—​ and resulted in the 2006 and 2009 pruning of state power. As a result, there was a modest reduction in the percentage of federal laws that require Bundesrat consent, while some of the powers and responsibilities of the länder were firmed up.52 In summary, the Bundesrat is a very powerful second house; it is in some respects even more federalist and powerful than is the U.S. Senate. This is especially evident given the Bundesrat’s role in electing half of the Constitutional Court and given the role of the länder in carrying into execution federal law.

F.  The Interpretation of the Basic Law by the Constitutional Court Dieter Grimm observes that the Basic Law has been amended formally more than fifty times, but he wisely observes that the biggest changes with respect to individual rights have come about as a result changes in interpretation.53 Grimm observes that the Constitutional Court has an extremely liberal approach in finding that there has been state action compared to the U.S. Supreme Court. 54 The history of the German Constitutional Court’s interpretation of the Basic Law is well told in Justin Collings book, Democracy’s Guardians: A History of the German Federal Constitutional Court, 1951–​2001.55 No purpose would be served by retelling that history here, so we refer readers to Professor Collings splendid book.

50 Kommers & Miller, supra note 3, at 119. 51 Id. 52 Id. at 122–​23. 53 Grimm, supra note 2, at 210. 54 Id. at 223. 55 Justin Collings, Democracy’s Guardians:  A History of the German Federal Constitutional Court, 1951–​2001 (2015).

68  the History and growth of Judicial Review, Volume 2

G.  Amending the Basic Law The German Basic Law, as the Constitution of Germany is called, can be amended by a two-​thirds vote of both of the chambers of Parliament: the Bundestag, which represents the people; and the Bundesrat, which represents the German states, called länder, and which consists of top-​ranking state officials. Unlike France, Germany thus includes a clearer federalism component in its constitutional amendment process. In doing this, Germany follows the federalism implications of the Basic Law’s preamble, which says that it is the länder in addition to “We the People of Germany” who have formed the Federal Republic of Germany. The Basic Law says, in Article 79, that constitutional amendments to the Basic Law that would affect the division of the Federation into länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20—​the core of the German Bill of Rights—​shall be inadmissible. An English translation of the full text of Article 79 reads as follows: The Basic Law of Germany, Article 79 [Amendment of the Basic Law] (1) This Basic Law may be amended only by a law expressly amending or supplementing its text. *** (2) Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat. (3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

Article 79, clause 3, thus makes it theoretically possible, in Germany, for a constitutional amendment to be unconstitutional. The German Constitutional Court has asserted the power to judicially review constitutional amendments in Germany to make sure they do not violate Article 79, clause 3. This clause is sometimes called “the Eternity Clause.” Dieter Grimm correctly observes that the Constitution cannot be made immune from change and that even the Eternity Clause could probably with persistence be altered. But, the very existence of the clause certainly raises the political costs of getting rid of it.56 In the Southwest case (1 BVerfGE 14 (1951), which I will discuss at the beginning of the next section, the German Constitutional Court reviewed two federal reorganization laws that applied to the then German states of Baden, Baden-​ Württemberg, and Württemberg-​Hohenzollern. By way of background, it is



56

Grimm, supra note 2, at 248.

The Federal Republic of Germany  69 helpful to remind our readers that the Allied powers had taken extensive steps to restructure German federalism after World War II and during the Allied military occupation of Germany.57 The United States and France had, in particular, divided the historic states of Baden and Württemberg in Southwest Germany into three entities, rather than two. The three resulting states had all become coequal states in the Federal Republic of Germany when the Basic Law went into effect in 1949. Article 118 of the new German Constitution, however, provided that: A new delimitation of the territory comprising the [three Southwest States] may be effected, notwithstanding the provisions of Article 29, by agreement among the [states] concerned. If no agreement is reached, the reorganization shall be effected by federal legislation which shall provide for a referendum.58

Article 29 of the Basic Law provided some general rules governing federal power to reorganize state boundaries, which were to some extent inconsistent with the process to be followed in the Southwest case under Article 118, and with the Basic Law’s commitment to democracy and federalism.59 The three states created by the Allied powers could not agree on reorganizing themselves. As a result, the federal legislature passed a first reorganization act. This act unconstitutionally extended the lives of the three state legislatures until reorganization had been effected. A  second reorganization act then merged the three states into one large mega-​state, called Baden-​Württemberg, conditional on approval in a popular referendum to be held in the whole territory of Baden-​Württemberg. The ancient and historic state of Baden—​whose roots went back to the twelfth century A.D.—​challenged the Southwest state reorganization in the very first case the Federal Constitutional Court heard and adjudicated under the Basic Law. Baden argued that, notwithstanding the Basic Law’s explicit authorization in Article 118 of the merger of the three states into one via a popular referendum, the merger, as applied to Baden, was unconstitutional. A  discussion of the Constitutional Court’s opinion in this case appears in the next section. Suffice it to say that the German Constitutional Court did rule part of the constitutional amendment passed by Parliament to facilitate the setting up of the Southwest state to be an unconstitutional constitutional amendment. Federal judicial review of the constitutionality of a constitutional amendment occurred again in the Federal Republic of Germany in the famous Privacy of

57

Werner Heun, The Constitution of Germany: A Contextual Analysis 52 (2011). Currie, supra note 1, at 402. 59 Id. at 355–​56. 58

70  the History and growth of Judicial Review, Volume 2 Communications case, 30 B VerfGE 1 (1970). That case concerned the constitutionality of an amendment to Article 10 of the Basic Law, which had initially provided that “[s]‌ecrecy of the mail and secrecy of posts and telecommunications shall be inviolable. Restrictions may be ordered only pursuant to a law.” The allegedly unconstitutional amended version of Article 10 provided: (1) Privacy of posts and telecommunications shall be inviolable. (2) This right may be restricted only pursuant to a law. Such law may lay down that the person affected shall not be informed of any such restrictions if it serves to protect the free democratic order or the existence or security of the Federation or Land, and that recourse to the courts shall be replaced by a review of the case by bodies and auxiliary bodies appointed by Parliament.60

This constitutional amendment was alleged to be unconstitutional on the ground that it violated the unamendable provisions in Articles 1 and 20 of the Basic Law. Article 1 of the Basic Law provides that: (1) The dignity of man shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive and the judiciary as directly enforceable law.61

In turn, Article 20 of the Basic Law provides that: (1) The Federal Republic of Germany is a democratic and social federal state. (2) All state authority emanates from the people. It shall be exercised by the people by means of elections and voting and by specific legislative, executive, and judicial organs. (3) Legislation shall be subject to the constitutional order; the executive and the judiciary shall be bound by law and justice. (4) All Germans shall have the right to resist any person or persons seeking to abolish that constitutional order, should no other remedy be possible.62



60

Murphy & Tanenhaus, supra note 7, at 703. Id. at 702. 62 Id. at 705. 61

The Federal Republic of Germany  71 The effect of the allegedly unconstitutional amendment to Article 10 was to permit Parliament to put restrictions on communications, without having to inform people placed under surveillance that their communications were being monitored. The amendment also would have allowed Parliament to allow the review of intercepts to be conducted by administrative bodies appointed by Parliament, in place of normal judicial supervision. Parliament passed a statute to implement the newly amended Article 10, and the Länd of Hesse and the Free Hanseatic City of Bremen sought Constitutional Court review of the constitutionality of the amendment to Article 10, and of the statute implementing it.63 The Constitutional Court upheld the constitutionality of the amendment and statute in a 5 to 3 decision. It is quite striking and unusual for a Constitutional Court decision to provoke a three justice dissent. “In 60  years of constitutional practice [in Germany], there have been 58 [formal] constitutional amendments [to the text of the Basic Law]. Although for the most part these have been minor changes of detail, the frequency of amendments is an indicator of the fact that the amendment procedure is definitively not an obstacle to change.”64 Most of the German Constitution is less entrenched than are the constitutions of the United States, Canada, and Australia, but the Eternity clause guarantees that there is a residuum that is completely unalterable, at least in theory. All opinions of the German Constitutional Court are immediately made available in English on the website of the court once they have been handed down.

H.  Growth in Federal Power in Germany There has been a growth in the power of the German national government since the 1950s, 1960s, and 1970s, with several major expansions of German federal power having been adopted in 2006 and 2009. It should be noted that the power of the U.S. national government grew during these same years as well. Moreover, from the point of view of federalism, the fact that the power of the länder has waned in the Federal Republic of Germany must be counterbalanced with the observation that Germany, today, is an integral part of the federal European Union, to which it has ceded much power. The German länder still pick the Bundesrat, and even though the powers of the upper house have been reformed and cut back, control of the Bundesrat still matters a lot in some situations. The Bundesrat picks half of Germany’s



63 64

Id. at 659–​60. Jens Woelk, Germany, in How Constitutions Change: A Comparative Study 145 (2011).

72  the History and growth of Judicial Review, Volume 2 Constitutional Court judges, and the länder administer most of the laws. These are not negligible powers, even if they are greatly reduced powers from what was contemplated in 1949.65 The German Constitutional Court has also published five volumes so far of its most important cases translated into English. The court now publishes all of its decisions in English on its website as soon as they are handed down. Professors Kommers and Miller explain that “to accommodate the interests of the new eastern Länder” after the reunification of Germany, the allocation of votes in the Bundesrat was changed. “[E]‌ach Land was entitled to at least three voting members, but Länder with more than two million people are entitled to four votes, those with more than six million receive five votes, and those with more than seven million receive six votes.”66 Professors Kommers and Miller also notes that “[a] Bundesrat delegation represents the interests of the Land government in federal lawmaking and administration. To underscore this fact and its federalist implications * * * Article 51(3) of the Basic Law ordains that the ‘votes of each Land may be cast only as a unit.’ Thus, a Land government speaks with one voice in the Bundesrat, without respect to the partisan makeup of that government.”67 One other feature of German federalism that needs to be mentioned up front is that the wealthier länder are required to share revenue with and subsidize less wealthy länder.68 As they rightly say, “[h]‌ere, the Basic Law thrusts the Bund and the Länder into an intricate web of intergovernmental relations in the area of public finance and fiscal policy, relations involving the collection, apportionment, and distribution of public revenue. Several of these provisions define the tax authority of each level of government and provide for the apportionment of tax revenue along vertical (from federation to Länder) and horizontal (Land to Land) lines.”69 In this respect, German federalism is very different from European Union or U.S. federalism. The wealthier German Land governments have a constitutional obligation to the poorer lands that Germany does not feel it owes to Greece, and that wealthy states in the United States might not feel toward poorer states. The German Constitutional Court has decided three finance equalization cases: one in 1986, one in 1992, and one in 1999 after the whole burden of paying for German unification—​by transferring wealth from the former West Germany to the former East Germany—​had fully been felt. These decisions agree that 65 The most up-​to-​date description in English of German federalism case law that I am aware of can be found in Kommers & Miller, supra note 3, at 79–​151. I quote them herein. 66 Id. at 110. 67 Id. 68 Id. at 95–​104. 69 Id. at 96.

The Federal Republic of Germany  73 there is a constitutional duty of wealthier states to subsidize poorer ones, while also conceding that such cross-​subsidization ought not to go so far as to violate the autonomy and independence of the länder as a whole. The current regime, enacted in 2001, “lowered the rate at which the rich states’ above average tax revenues are subject to direct state-​to-​state transfer (from 80% to 72.5%) [and it also] exempted 12.5 percent of tax revenue increases over the previous year from the calculation of states’ fiscal capacity, thereby reducing rich states’ exposure to federally mandated transfers by that amount. These reforms represent timid but certain movement toward a much-​debated model of ‘competitive federalism’ that would make states’ fiscal well-​being dependent on state economic and social policy. This, of course, represents a challenge to Germany’s commitment to equivalent living conditions.”70 In the last fifteen years, Germany has had to add a Solidarity Pact element to its tax equalization, in what now appears to be a never-​ending struggle to bring the former East Germany up to the former West Germany’s fiscal capacity.71 * * * In summary, the Federal Republic of Germany today has a constitution of checks and balances that has survived for more than seventy years, under which the country has flourished economically and politically, and which allowed for the reunification of Germany. Germany today leads the European Union and is an invaluable partner to the United States and North Atlantic Treaty Organization (NATO). Constitutional liberty is vigorously enforced in Germany, although the German emphasis is more on human dignity than on liberty. The German Basic Law emerged primarily for rights from wrongs reasons and secondarily for federalism and separation of powers umpiring reasons. Thirdly, German Constitutional Court power is enhanced by a constitution of checks and balances, which divides and limits governmental power among many actors.

II.  The German Constitutional Court and Its Case Law The German Constitutional Court is the main guardian of the constitutional order, with broad power to decide almost any constitutional question.72 The German Constitutional Court is the archetype of the Concentrated Model of judicial review, just as the U.S. Supreme Court typifies the Diffuse Model of

70

Id. at 103. Id. at 104. 72 Kommers & Miller, supra note 3, at 1. 71

74  the History and growth of Judicial Review, Volume 2 judicial review. The German Constitutional Court is separate from the ordinary German civil and criminal law courts, from the German administrative law court, and from specialized courts for labor law cases, fiscal cases, and social security cases.73 The German Constitutional Court consists of two senates, each with eight members, half of whom are elected for nonrenewable twelve-​year terms by a two-​ thirds vote of the Bundestag, the lower house of the legislature, with the other half being elected by a two-​thirds vote of the Bundesrat, the upper house of the legislature. There is a mandatory retirement age of sixty-​eight, even if a justice has not completed his twelve-​year term. On rare occasions, the two senates, which have different jurisdictions, may sit together as a plenum with sixteen members. The two-​thirds vote requirement to elect a new Constitutional Court justice helps ensure that only justices with broad public backing can be elected to the Constitutional Court. It has also led, in practice, to an informal agreement among Germany’s political parties that half the Constitutional Court seats are allocated to parties on the left wing of the political spectrum, while the other half are allocated to parties on the right. The German Constitutional Court sits in the German city of Karlsruhe, so as to render it more independent of the country’s political elites, who once lived in Bonn and who now live in Berlin. Each of the two senates of the German Constitutional Court rely upon three-​ justice chambers, which separate “the wheat from the chaff ” and “dispose of more than 95 percent of all constitutional complaints, relieving the full senates of what would otherwise be an impossible task.”74 German Constitutional Court decisions “bind all branches and levels of government,” including the legislature, the chancellor, and the sixteen länder.75 “The one exception to the binding effect rule is the Federal Constitutional Court itself. (The rule of stare decisis [i.e. binding judicial precedents] does not bind the German judiciary).”76 “Nearly all of the Federal Constitutional Court’s jurisdiction, covering fourteen types of disputes, is defined in the Basic Law. * * * The most significant areas of review involve abstract and concrete judicial review and constitutional complaints. There are no statutory provisions for a preventative or an advisory judicial review of legal norms. * * *”77 *** “The Law Concerning the Federal Constitutional Court originally provided for the possibility of obtaining advisory opinions. The provision was soon dropped, however, in view of the difficulties that arose in conjunction with the binding nature of such decisions. * * *”78 73 Id. 74 Id. at 21. 75 Id. at 37. 76 Id. 77 Id. 78 Wolfgang Zeidler, President of the Federal Constitutional Court, The Federal Constitutional Court of the Federal Republic of Germany: Decisions on the Constitutionality of Legal Norms, 62 Notre Dame L. Rev. 504 (1987).

The Federal Republic of Germany  75 The first kind of judicial review, which the German Constitutional Court can engage in, is abstract judicial review. Under this form of review, “the federal government, a state government, or one-​third of the Bundestag can ask the Federal Constitutional Court to determine the compat[i]‌bility of federal or state law with the Basic Law as well as the compatibility of state law with any other federal law.”79 This type of judicial review typically occurs before a newly passed law even goes into effect. Abstract judicial review is not available in the common law countries, which we discussed in Volume I except in Canada, which can render advisory opinions upon the request of the government or of a majority in Parliament. All laws “properly passed by Parliament, statutory orders, by-​laws adopted by municipalities or other types of corporate bodies may be subjected to this review.”80 It often happens that “the party requesting an abstract judicial review is frequently the political opposition in the Bundestag or a state government ruled by the opposition party. * * *” The second type of judicial review that the Constitutional Court engages in is concrete judicial review, which occurs when the ordinary civil law, criminal law, or administrative law courts conclude that a case they are deciding involves a constitutional question, and they think the federal statute as it applies in the case at hand is unconstitutional. The ordinary courts in such situations stay their decision of the case and certify the constitutional question to the Constitutional Court. Once the Constitutional Court determines the answer to the certified question, the ordinary courts resolve the case accordingly.81 A third form of judicial review, which the Constitutional Court engages in, is the hearing of constitutional complaints. Such complaints can be made by any person “asserting a violation by a public authority of either basic rights or certain other constitutional rights (such as the right to be heard).”82 Constitutional complaints “can be lodged against any act of public authority, including measures taken by administrative agencies or court decisions. However, available legal recourse must be exhausted prior to any such review by the Federal Constitutional Court.” * * * These three forms of triggering Constitutional Court review are the ones most commonly used, but review can also arise “in the context of judicial disputes between public bodies” and in the context of “legislative omissions.”83 Article 79(3), the Eternity clause of the German Basic Law, makes it unconstitutional to amend the German Constitution to dilute the right to human dignity or to alter the federal, democratic rule of law, and social state principles of Articles 1 and 20 of the Basic Law. It is thus entirely possible in Germany for

79

Id. Id. Id. 82 Id. 83 Id. 80 81

76  the History and growth of Judicial Review, Volume 2 a constitutional amendment to be itself unconstitutional, if it violates Articles 1 or 20. In the subunits to come, I will discuss German Constitutional law as to federalism umpiring, separation of powers umpiring, individual rights umpiring, and as to political questions.84

A. Federalism Umpiring The first case handed down by the German Constitutional Court was a federalism and separation of powers judicial umpiring case. Since I believe the need for a federalism and separation of powers umpire is one of the main causes of the origination of judicial review, I begin with that case. The most important cause of the emergence of judicial review of legislation in modern Germany is the rights from wrongs reaction to Nazism and the Holocaust. I will turn to that body of case law after discussing federalism and separation of powers judicial umpiring.

1. The Southwest State Case Article 29 of the Basic Law says that the “division of the federal territory into Länder may be revised to ensure that each Länd be of a size and capacity to perform its functions effectively.” The article goes on to say that “[r]‌evisions of the existing division into Länder shall be effected by a federal law, which must be confirmed by referendum.” Only one such referendum reorganizing the size and boundaries of the länder has been held since the reorganization of the three southwest states in 1952 into one mega-​state. The West Germans disliked the three-​state arrangement because it split up two historical states. Article 118 of the Basic Law accordingly modified the general policy of Article 29, by authorizing the three southwest states to reorganize themselves by mutual agreement.85 In 1950, after “negotiations” among the three southwest states “collapsed,” Parliament enacted two reorganization statutes, as I mentioned. “The first extended the terms of the Württemberg-​Hohenzollern and Baden legislatures, a measure designed to avoid new state elections in April 1951 because the territorial reorganization of the states seemed imminent, making new legislative sessions for the parliaments in the old states unnecessary. The second specified the procedures by which the proposed federally sponsored referendum would be conducted. *** Baden challenged the constitutionality of these statutes on the ground that they violated the [unamendable] principles of democracy and

84

85

My knowledge of the case law comes overwhelmingly from Kommers & Miller, supra note 3. Id. at 81.

The Federal Republic of Germany  77 federalism:  democracy because the electoral districts were created in such a way as to dilute the votes of persons casting ballots in Baden; federalism because the federal government is powerless to tamper with the legislature of an independent state. The result was the court’s first major decision and the first decision in which the court set aside a federal law.”86 The first of the two foundational German constitutional law cases is thus the Southwest State Case, in which the Constitutional Court said that a constitutional amendment that Parliament had relied upon to extend the terms of the Württemberg-​Hohenzollern and Baden legislatures was an unconstitutional, constitutional amendment. This make the Southwest State Case a striking foundational case because it was a federalism umpiring case, because it was the court’s first case, and because the court struck down as unconstitutional a portion of a major federal law, which was itself a constitutional amendment. The Southwest State Case signaled from the outset that the German Constitutional Court was going to be a very active Constitutional Court and that it was not afraid of striking down as unconstitutional acts of the German Parliament. The case law handed down by the Bundesverfassungsgericht shows how the intent of the Framers to provide a federalism umpire was implemented and observed starting on the very first day that the Constitutional Court sat. Judicial review emerged in Germany along the federalism umpiring lines originally intended by the Framers. Unlike other constitutional courts, which suffered from a period of confusion or ineffectiveness, the German Constitutional Court robustly embraced the judicial review power explicitly given to it in the Basic Law from the very beginning of its history. The court held that although the Basic Law recognized the sovereignty of each Länder, the overarching sentiment of the Basic Law envisioned a “changeable federal state” whereby the composition of the Länder could be changed by the will of the entire federation. Southwest State Case, 1 BVferGE 14 (1951). Additionally, the Southwest State Case established the novel concept that a constitutional provision or amendment could itself be deemed unconstitutional if it did not comport with the overarching ideals of the Basic Law such as the irrevocable federal status of the German state. The Southwest State Case was also an important decision for German separation of powers jurisprudence. The Southwest State Case struck down as unconstitutional on separation of powers grounds a provision of federal law that affected the terms of office of a Länder’s parliamentary government to effectuate the reorganization. The Constitutional Court, perhaps remembering a similar



86

Id.

78  the History and growth of Judicial Review, Volume 2 law that the Nazis had applied in dismembering Prussia in the 1930s, held that the German federal government lacked the power to shorten or extend the term of office of any Länder legislative majority of government. Additionally, the court struck down a provision authorizing the Minister of the Interior power to adopt any regulations “necessary for the execution” of rearranging the new Länder. The court held that [t]‌he Basic Law in this as in other respects reflects a decision in favor of a stricter separation of powers. The parliament may not escape its lawmaking responsibilities by transferring part of its legislative authority to the executive [Regierung] without considering and precisely determining the limits of the delegated authority. The executive, on the other hand, may not step into the shoes of Parliament on the basis of indefinite provisions authorizing the promulgation of regulations.87

The Southwest State Case thus established the German Constitutional Court as the umpire of separation of powers disputes as well as federalism disputes for all of Germany. The Southwest State Case upheld the power of the federal government to reorganize the three southwestern Länder, but it limited the power of the Parliament by declaring the separation of powers aspect of Parliament’s proposal for the Southwest State reorganization to be unconstitutional. (The German government many years later held a referendum on whether to merge the länder of Berlin and Brandenburg, but the voters in those two länder rejected the referendum asking for their approval and so the merger was not successful.) Following the tone set in the Southwest State Case, the German Constitutional Court has repeatedly proved itself to be a neutral umpire of federal and state relations over the years. In the first forty years of existence, between the periods of 1951 and 1991, the Constitutional Court has been very active in general having declared 419 Federal and Länder statutes to be incompatible with the Basic Law of Germany. Since 1992, that number has increased to 619.88 The Constitutional Court’s neutral and robust umpiring function is clearest when one looks at the Constitutional Court’s federalism and separation of powers jurisprudence. There is no question under German constitutional law that it is the federal government that is sovereign and not the länder. I think there is no question in

87 Southwest Case, 1 BVferGE 14 (1951), Bundesverfassungsgericht Official English Reporter (Editor’s Notes 211). 88 David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan, 87 Texas L. Rev. 1545, at 1547n.5 (2009).

The Federal Republic of Germany  79 U.S. constitutional law that neither the federal nor the state governments are sovereign, but that sovereignty under the U.S. Constitution rests with a majority of the people in three-​quarters of the states since this was the entity that “made” the U.S. Constitution.

B.  Foundational Importance of Federalism in the Basic Law Dieter Grimm notes that according to the preamble of the German Basic Law, it is the German people who founded the federal republic and not the länder. This is indisputably true just as it is a majority of the American people in three-​ quarters of the states who made the U.S. Constitution. But, the most important feature of the German Basic Law is its rights from wrongs origins and federalism, and separation of powers umpiring is of only secondary importance. I have nonetheless started my description of the history of the Constitutional Court with federalism umpiring in this chapter largely for historical reasons. I  then turn later to the German Constitutional Courts’ protection of fundamental rights, which has grown ever more robust over time. Professor David Currie described the importance of federalism to the German Basic Law in 1994, in the following terms: Federalism in the broad sense has a long history in Germany. The Empire that Napoleon destroyed was in its later stages essentially a loose confederation, and it was replaced by two others: the short live French dominated Rheinbund of 1806 and the indigenous Deutscher Bund of 1815. The abortive Frankfurt Constitution of 1849 (‘Paulskirchenverfassung’), Bismarck’s 1871 imperial constitution, and the Weimar Constitution of 1919 all provided for true central governments; but each of them reserved important powers to the constituent states.89

The idea of the central importance of federalism is thus deeply rooted in German history and tradition. This fact is reflected in: (1) the country’s name as a federal republic; (2) the fact that the preamble to the Basic Law mentions that the country is founded by the sixteen länder, which are named therein in addition to the people of Germany; and (3)  by the existence of the Eternity clause of Article 79(3), which makes German federalism an unamendable feature of the Basic Law.90



89

90

Currie, supra note 1, at 33. Id.

80  the History and growth of Judicial Review, Volume 2 Just as the states possess all powers not delegated to the federal government in the United States, so too does Article 30 of the German Basic Law state that “[t]‌he Länder shall have the right to legislate in so far as this Basic Law does not confer legislative power on the Federation.” As Professor Currie observes, however, “Other provisions * * * grant the Federation extensive legislative authority.”91 Moreover, the German national government has not only the powers the U.S. national government has claimed since the New Deal, “but also [power over] fields like contract, tort, and criminal law that in this country are still left largely to the states.”92 But while the legislative power of the German national government is sweeping, the “federal executive and judicial powers are significantly narrower in Germany than they are in this country. Most federal legislation is carried out by the Länder, and federal courts are almost exclusively courts of last resort.”93 The basic list of exclusive federal legislative powers in Article 73 [includes]: foreign affairs, defense, national citizenship, currency, weights and measures, free movement of goods and persons, postal and telecommunications services, patents and copyrights. Taxes are elsewhere provided for, and there is no necessary and proper clause. Federal civil service and ‘statistics for federal purposes,’ both of which we would find implicit, are expressly included; so are immigration * * * and ‘federal railroads and air transport,’ which fall under our commerce clause.”94

It should also be noted that: The list of concurrent federal legislative powers in Article 74 is also extensive. It embraces * * *: welfare, social insurance, and labor law; economic regulation, including mining, manufacturing, energy, crafts and trades, banking, insurance, and exchanges; agriculture, fisheries, forests, and transportation; communicable diseases, medical licensing, the protections of plants and animals[; the power to regulate air pollution, solid waste disposal, and noise.95 “Thus, there are precious few matters that cannot be made the subject of federal legislation in the Federal Republic; most of them concern education and other cultural matters * * * and the organization of state and local government.”96 There is a judicially enforceable subsidiarity requirement that applies to most concurrent



91

Id. at 35. Id. at 34. 93 Id. 94 Id. at 35–​36. 95 Id. at 42. 96 Id. at 42–​43. 92

The Federal Republic of Germany  81 federal lawmaking, and the Constitutional Court recently struck down a statute on subsidiarity grounds as you will see below.97

Nevertheless, the German länder possess much more national executive and judicial power than do U.S. state governments. They benefit from an upper house of the national Parliament, the Bundesrat, which consists of länder (state) officials, and which must sign off on most federal legislation. They also benefit from the länder acting through the Bundesrat to pick half of the nation’s Constitutional Court justices, thus guaranteeing that that court will be highly responsive to federalism concerns. “[M]‌ost federal laws are carried out by the states * * * [and while] most legislative power in Germany is federal; most executive power is not.” 98As Professor Currie explained in 1994: State administration of federal law in Germany is motivated in part by the same considerations that underlie our separation of legislative and executive powers. The dangers of an all-​powerful federal executive were all too vividly illustrated during the Nazi period; the risk of inadequate enforcement is the price of protection against prosecutorial abuse. The Basic Law goes beyond our Constitution by taking enforcement not only out of legislative hands but largely out of federal hands as well in a parliamentary system this may be necessary to assure effective freedom from legislative control.99

“To an outside observer from the United States, one of the most startling aspects of the German Basic Law is that most federal laws are carried out by the states.”100 It must be noted, before going further, that federal power in Germany has grown enormously since 1949 with “some twenty amendments” having been added to expand the scope of national power by the 1990s, and with additional important reforms in 2006, 2009, and 2014 as well. Just as the Basic Law relies heavily on the states to administer federal law, the Basic Law also relies heavily on state trial and middle-​level appellate courts to initially adjudicate all judicial matters, which are organized into five subject matters: (1) the ordinary civil and criminal law courts, (2) the administrative law courts, (3) the fiscal matters courts, (4) the labor law courts, and (5) the social security courts. Each of these five judicial pyramids is headed up by a separate federal supreme court, but below the federal supreme courts lie state trial and middle-​level



97

Id. Id. at 66–​67. 99 Id. 100 Currie, supra note 1, at 66. 98

82  the History and growth of Judicial Review, Volume 2 appellate courts. The national supreme courts may have the last word on the meaning of federal law, but a lot of cases get resolved by state trial and appellate courts and never go any farther. The länder and the Bundestag “are equally represented on a committee that selects judges of the other supreme courts in conjunction with the appropriate federal minister.”101 The federal supreme courts can decide questions of state or länder law as well as deciding questions of federal law, so in this respect the German Supreme Courts are more powerful than is the U.S. Supreme Court.102 Germany does also have, of course, a federal Constitutional Court, which has no state trial or appellate courts below it. Half the members of the Constitutional Court are elected by the Bundestag, while the other half are elected by a two-​ thirds majority of the state-​dominated Bundesrat. In addition to having exclusive control over educational and cultural matters, the länder have their own police. There is only a very limited federal Bundespolizei. “Federalism is [thus] a central principle of the German Basic Law” according to Professor David Currie.103 Professor Currie concludes that: [C]‌onstitutional limits on federal power remain a reality. Unlike our Supreme Court, the Constitutional Court * * * has faithfully defended the prerogatives of the states. * * * [T]he continuing importance attached to the decentralization of governmental authority in the Federal Republic over the past forty years is one of the many aspects of recent experience that give reason for optimism as to the future of liberty, democracy, and the rule of law in a no longer divided Germany.104

These words remain true today, in 2020. There has been a growth in the power of the German national government since the 1950s, 1960s, and 1970s, with several major expansions of German federal power having been adopted in 2006 and 2009. It should be noted that the power of the U.S. national government grew during these same years as well. Moreover, from the point of view of federalism, the fact that the power of the länder has waned in the Federal Republic of Germany must be counterbalanced with the observation that Germany, today, is an integral part of the federal European Union, to which it has ceded much power. The German länder still pick the Bundesrat, and even though the powers of the upper house have been reformed and cut back, control of the Bundesrat



101

Id. at 74. Id. at 75. 103 Id. at 101. 104 Id. at 101. 102

The Federal Republic of Germany  83 still matters a lot in some situations. The Bundesrat picks half of Germany’s Constitutional Court judges and the länder administer most of the laws. These are not negligible powers, even if they are greatly reduced powers from what was contemplated in 1949.105 The German Constitutional Court has also published five volumes so far of its most important cases translated into English. Professors Kommers and Miller explain that “to accommodate the interests of the new eastern Länder” after the reunification of Germany, the allocation of votes in the Bundesrat was changed. “[E]‌ach Land was entitled to at least three voting members, but Länder with more than two million people are entitled to four votes, those with more than six million receive five votes, and those with more than seven million receive six votes.”106 Professors Kommers and Miller also note that “[a] Bundesrat delegation represents the interests of the Land government in federal lawmaking and administration. To underscore this fact and its federalist implications * * * Article 51(3) of the Basic Law ordains that the ‘votes of each Land may be cast only as a unit.’ Thus, a Land government speaks with one voice in the Bundesrat, without respect to the partisan makeup of that government.”107 One other feature of German federalism that needs to be mentioned up front is that the wealthier länder are required to share revenue with and subsidize less wealthy länder.108 As they rightly say, “[h]‌ere, the Basic Law thrusts the Bund and the Länder into an intricate web of intergovernmental relations in the area of public finance and fiscal policy, relations involving the collection, apportionment, and distribution of public revenue. Several of these provisions define the tax authority of each level of government and provide for the apportionment of tax revenue along vertical (from federation to Länder) and horizontal (Land to Land) lines.”109 In this respect, German federalism is very different from European Union or U.S. federalism. The wealthier German Land governments have a constitutional obligation to the poorer lands that Germany does not feel it owes to Greece, and that wealthy states in the United States might not feel toward poorer states. The German Constitutional Court has decided three finance equalization cases: one in 1986, one in 1992, and one in 1999 after the full burden of paying for German unification—​by transferring wealth from the former West Germany to the former East Germany—​had fully been felt. These decisions agree that there is a constitutional duty of wealthier states to subsidize poorer ones, while 105 The most up-​to-​date description in English of German federalism case law that I am aware of can be found in Kommers & Miller, supra note 3, at 79–​151. I rely on their scholarship herein. 106 Id. at 110. 107 Id. 108 Id. at 95–​104. 109 Id. at 96.

84  the History and growth of Judicial Review, Volume 2 also conceding that such cross-​subsidization ought not to go so far as to violate the autonomy and independence of the länder as a whole. The current regime, enacted in 2001, “lowered the rate at which the rich states’ above average tax revenues are subject to direct state-​to-​state transfer (from 80% to 72.5%) [and it also] exempted 12.5 percent of tax revenue increases over the previous year from the calculation of states’ fiscal capacity, thereby reducing rich states’ exposure to federally mandated transfers by that amount. “These reforms represent timid but certain movement toward a much-​debated model of ‘competitive federalism’ that would make states’ fiscal well-​being dependent on state economic and social policy. This, of course, represents a challenge to Germany’s commitment to equivalent living conditions.”110 In the last fifteen years, Germany has had to add a Solidarity Pact element to its tax equalization, in what now appears to be a never-​ending struggle to bring the former East Germany up to the former West Germany’s fiscal capacity.111

1. Early Federalism Cases Decided by the German Constitutional Court My discussion of the next few cases draws on two books:  one by Donald P. Kommers and Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany; and the other by David P. Currie, The Constitution of the Federal Republic of Germany.112 I  acknowledge an enormous debt that I  owe to these three authors for making the case law and decisions of the German Constitutional Court accessible to me in English. First, in the 1957 Concordat Case, the German Constitutional Court vigorously enforced federalism and specifically the ideas of federalism underlying the Federal Republic of Germany’s Basic Law. In 1933, Adolph Hitler’s regime had entered into an agreement with the Vatican providing for freedom of religion for Catholics, Church control over church properties, and public funding for Catholic schools. The Concordat Case arose after the state of Lower Saxony required all students to attend nondenominational school. The federal government challenged this new legislation as a violation of the federal government’s authority to enter into international agreements.113 The Constitutional Court upheld Lower Saxony’s decision to adopt interdenominational schools as standard citing “state supremacy over education,” and the lack of an express statement in the Basic Law obligating the Länder to observe treaties of the Third Reich. This was a striking victory for state over federal power in German constitutional law. National power to enter into treaties is very 110 Id. at 103. 111 Id. at 104. 112 Kommers & Miller, supra note 3; and Currie, supra note 1. 113 Kommers & Miller, supra note 3. http://​www.bundesverfassungsgericht.de/​en/​organization/​ gb2009/​A-​VI.html

The Federal Republic of Germany  85 broadly construed under U.S. constitutional law in Missouri v. Holland, 252 U.S. 416 (1920). It is thus almost amazing to an American lawyer that the German Constitutional Court, acting as a federalism umpire, would decide this case as one that fell within the power of the Länder and not the power of the German federal government. In the Television I Case, another early federalism dispute to come before the Constitutional Court, the court established a tone of neutrality by adopting what Kommers, Miller, and Currie describe as the principal of federal comity. Television I came to the court after the federal government’s efforts to create a federally operated television station was challenged by the Länder as an unconstitutional exercise of power by the federal government that was not conferred by the Basic Law. In Hamburg, the state monopoly over television broadcasting was interrupted by a new federal competitor, and the state sued to preserve its television broadcasting monopoly. The Länder ran existing television stations and did not want competition from the newly created federal stations. Professors Kommers, Miller, and Currie all explain that the Constitutional Court found that in all federalism disputes, a doctrine of federal comity exists, which obligates both the German federal government and the German Länder governments to consider and respect each other’s interests in exercising their respective authority. The Constitutional Court declared that “[i]‌n the German federal state the unwritten constitutional principle of the reciprocal obligation of the federation and the states to behave in a pro-​federal manner governs all constitutional relationships between the nation as a whole and its members and the constitutional relationships among members.”114 This pro-​federal obligation was called the obligation of “Bundestreue.” It remains a very important doctrine in German constitutional case law. The Constitutional Court held in favor of the Länder because the Basic Law of Germany reserves all powers not expressly conferred to the federal government for state governments. The court held that because the federal government was not conferred the right to establish a television station, it had no right to do so. This was especially the case because the Basic Law gives the Länder primacy over cultural and educational matters. The German Constitutional Court also ruled early on in favor of the federal government’s power in an important case called the Atomic Weapons Referenda Case I, 8 BVerfGE 104 (1958).115 In that case, the Social Democrats tried to express their opposition to the federal government’s defense policy, which relied in part on the placement in Germany of U.S. nuclear weapons by holding referenda in the Länder, which they controlled that would allow the German people to express their opposition to the federal policy. The federal government petitioned

114 115

Kommers & Miller, supra 3, at 69–​75. Id. at 124.

86  the History and growth of Judicial Review, Volume 2 the Constitutional Court asking that the proposed state referenda be canceled because they interfered with federal power over defense and foreign policy, and the Constitutional Court agreed with the federal government and canceled the holding of the referenda. The Constitutional Court is thus not a biased umpire in federalism cases but has in fact ruled either for the Länder or for the federal government, depending on how it sees the merits of each case. The decisions in the Concordat Case, in the Television I Case, and in the Atomic Weapons Referenda Case I are much more than mere holdings in particular cases or controversies. Their foundational significance lies in the fact that they show the Constitutional Court repeatedly assuming the role of being a federalism umpire as in the Southwest States Case. These cases all show the Constitutional Court’s commitment to neutral arbitration of federalism cases based on constitutional principles as was contemplated by the Framers of the Basic Law. From the first day it sat, right on down to the present day, the German Constitutional Court has exercised active judicial review in defense of the constitutional principles enumerated in the Basic Law. This has led to active federalism and separation of powers judicial umpiring as is explained by former University of Chicago Law Professor David P. Currie in his book on The Constitution of the Federal Republic of Germany.116 The Southwest State Case was not only a foundational moment in the emergence of German judicial review, it was also an important statement by Germany’s Constitutional Court that it would judicially protect and defend federalism boundary lines. From the very beginning, therefore, Germany rejected the Wechsler-​Choper thesis in U.S. constitutional law, which argues that courts ought not to enforce federalism boundary lines, but that they should instead leave such enforcement up to the political process.117

2. Modern Federalism Case Law of the German Constitutional Court The four foundational German federalism cases are good law in Germany today, just as McCulloch v. Maryland, 17 U.S. 316 (1819) and Gibbons v. Ogden, 22 U.S. 1 (1824) are good law in the United States. Professors Kommers and Miller note that the original Basic Law had “a short list of subjects over which the federation would have exclusive competence (Article 73) * * *; and a much more sweeping area in which the federal government and the Länder had concurrent power.”118

116 Currie, supra note 1. 117 Jesse Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980). I have refuted Professor Choper’s argument in Steven G. Calabresi & Lucy Bickford, Federalism and Subsidiarity:  Perspectives from Law, in Nomos LV Federalism and Subsidiarity (James E. Fleming & Jacob T. Levy eds., 2014). 118 Kommers & Miller, supra note 3, at 121.

The Federal Republic of Germany  87 The more sweeping area was Article 74, which articulated that federal law preempted contrary state law. The states were really only supreme as to educational and cultural matters—​a situation which has changed over time and which will undoubtedly continue to change. Kommers and Miller note that by “the 1990’s some twenty amendments had shifted legislative power to the federation. This was accomplished both by major additions to the exclusive powers of the federation and by an expanded list of subjects over which the federation would have concurrent jurisdiction, the expectations being that the federation would enact preemptive legislation in these areas to the exclusion of parallel legislation by the Länder. These new concurrent powers included the making of regulations on organ transplants, state liability, hospitalization costs, waste disposal, air pollution, weapons and explosives, the promotion of scientific research, and the production and utilization of nuclear energy.”119 In 1969, federal power was expanded to allow the making of framework laws for institutions of higher learning, and as to salaries and pensions of judges and other civil servants.120 Note that all of these changes were made legally in Germany by amending the Basic Law. In the United States, the federal government since the 1960s has adopted sweeping bans on employment discrimination, major new wealth transfer payments, the Clean Air and Clean Water Acts, OSHA, and most recently the Affordable Care Act effort at healthcare reform. The United States adopted no constitutional amendments to effectuate these changes, all of which I heartily approve of. What do the differing records of Germany and the United States, with respect to the expansion of federal power, suggest to you? All the functions that the national governments of Germany and the United States have taken on are ones that I believe ought to be performed at the national level of a federation, for economics of federalism reasons. Three modern German Constitutional Court federalism decisions show that that court remains astonishingly protective of the powers of the länder, at least from an American perspective. The Immigration Act Case deals with voting rights in the Bundesrat; the Junior Professor Case deals with state power over education, which the Court protects; and the Geriatric Nursing Case struck down a federal law passed under the federal government’s grant of concurrent power on subsidiarity grounds. All of these cases were handed down after the year 2000, which suggests that federalism is alive and still kicking in German constitutional law.



119 120

Id. Id. at 121–​22.

88  the History and growth of Judicial Review, Volume 2 The first of the three modern federalism cases I  wish to discuss is the Immigration Act Case, 106 BVerfGE 310 (2002), which Kommers and Miller discuss in their book.121 The case concerned a situation in which a Land government had a coalition government, and there was disagreement among the Land’s delegates to the Bundesrat, the upper house of the German Parliament as to how the Land’s votes should be cast. In the absence of an agreement among a Land’s delegates, the Land abstains from voting but this is in effect a negative vote so usually Land coalition partners negotiate over how the Land’s vote should be cast. There was in 2002 heated debate over immigration reform legislation proposed by the Social Democratic Party, and the Green Party, in coalition with one another, dominated the federal government. This led to an inability of Brandenburg’s delegates to the Bundesrat to agree on how that state’s vote should be cast. A federal bill to reform immigration had passed the Bundestag, but it required Bundesrat consent to go into effect. The national opposition coalition of the Christian Democratic Union and the Christian Social Union parties had obtained a Bundesrat majority, thanks to what we Americans would call midterm elections. Chancellor Gerhard Schroeder needed the state of Brandenburg’s four votes in the Bundesrat to pass his legislation, but Brandenburg’s government at the time was a Socialist/​Christian Democrat coalition government. Brandenburg’s minister-​president, who was one of the state’s four Land delegates tried to cast Brandenburg’s four votes in favor of the immigration reform bill, but one Christian democratic delegate from Brandenburg shouted out a “no” vote. The Bundesrat counted all four of Brandenburg’s votes as being in favor of the immigration reform bill, and the federal president signed the bill into law. “Six of the länder that abstained or voted against the bill then sued in the Constitutional Court in an abstract review proceeding. The second Senate, by a vote of six to two, upheld the challenge thereby voiding the immigration bill as law on constitutional grounds.”122 The German Constitutional Court held that: The land Brandenburg did not assent to the Immigration Act because, when the Land was called on, the votes were not cast uniformly. The variation in the votes cast by Brandenburg was not cured by the further course of the balloting process. [The Court added that] The votes of a land are cast by its Bundesrat delegates. The person from among these representatives who will cast the votes of a Land is, as a rule, determined by the delegates themselves or by the respective Land government in the run-​up to a Bundesrat session. The Basic Law expects that each state’s votes will be cast uniformly and respects the practice of

121

122

They discuss it in their book; see Kommers & Miller, supra note 3, at 111–​13. Id. at 111.

The Federal Republic of Germany  89 the block vote [pursuant to which all of a Land’s votes are cast by one member of its delegation], the holders of which are designated by each Land autonomously, without, in turn, interfering in the constitutional sphere of the Land with instructions and determinations. It follows from the Basic Law’s conception of the Bundesrat that a member of a Land’s delegation to the Bundesrat can, at any time, contradict the votes cast by the holder of the Land’s block vote. In these circumstances the preconditions for accepting the block vote cease to apply. * * * The votes of a Land are to be cast uniformly in accordance with Article 51 (3) [2]‌of the Basic Law.123

This decision of the German Constitutional Court reflects the fact that “the Basic Law does not place the Bundesrat on an equal footing with the Bundestag.”124 Bundesrat consent is often needed to make changes in the law, primarily for laws that impinge on the administration by the länder of federal law or for constitutional amendments or for laws affecting state tax revenues.125 In 1975, in the Bundesrat Case (37 BVerfGE 363), the Constitutional Court was asked to decide “whether a later amendment of a law that originally required the consent of the Bundesrat also is subject to an absolute veto by the Bundesrat, even if the amendment itself does not affect a matter requiring the Bundesrat’s consent.”126 The Constitutional Court, quite sensibly, ruled that Bundesrat consent was not required under these circumstances. As Professors Kommers and Miller put it, “[i]‌n the Bundesrat Case the court rejected the theory of co-​responsibility. Nevertheless, the Bundesrat developed into a virtually equal player on the field of national legislation.”127 Professors Kommers and Miller note that the ability of the Bundesrat to “block federal legislation came to a head when Federal Chancellor Gerhard Schroder’s SPD/​Green federal government pursued a range of economic and labor-​market reforms that were ultimately held at bay by the CDU dominated Bundesrat, leading to what some critics referred to as reform gridlock (Reformstau).”128 Both sides eventually realized that a broadscale reform was essential. The impasse over the immigration case mentioned proved as much. Major changes on apportionment and distribution of revenue were made in 2006, and additional “major amendments to the Basic Law in both 2006 and 2009” changed the distribution of legislative power.129



123

Id. at 110–​15. Id. at 114. 125 Id. 126 Id. at 115–​16. 127 Id. at 118. 128 Id. at 119. 129 Id. at 120. 124

90  the History and growth of Judicial Review, Volume 2 The federal government now has exclusive power over “regulation of weapons and explosives, production and use of nuclear energy for peaceful purposes; disposal of radioactive material; defense by federal police against international terrorism (subject to Bundesrat approval); care of those injured or affected by war; and protection against the exportation of cultural goods.”130 After 2006, federal concurrent powers were expanded to include, in addition to civil and criminal law, the fields of “labor law, corporate law, public welfare, agricultural policy, economic sector legislation, land transfers, and public health.”131 “With the repeal of Article 74a, the status and duties of civil servants, of the Länder, local governments, and other public corporations (including judges) were transferred to the newly expanded list of concurrent legislative powers. The repeal of Article 75 eliminated the federations’ authority to enact ‘framework’ laws [whereby the federation could impose broad policy mandates on the Länder].”132 Professors Kommers and Miller note that, in some respects, the constitutional amendments already described “firmed up the powers and responsibilities of the Länder.”133 The länder can now pass statutes deviating from the federation’s old framework laws, and they can take over air transport administration (subject to Bundestag consent). Provisions were also made for more federal-​state cooperation and cost-​sharing, control over information technology, and for reinforcing “the principle of subsidiarity,” with both the Bundestag and the Bundesrat having “the right to bring an action before the Court of Justice of the European Union to challenge a legislative act of the European Union for infringing the principle of subsidiarity.”134 The challenge to the old power of the federation to enact framework laws was triggered in part by reaction to the following case. The second modern case, which shows the Constitutional Court’s continuing attachment to federalism is the Junior Professor Case, 111 BVerfGE 226 (2004).135 In this case, a 2002 federal law supported by the SPD/​Green coalition federal government sought to create the rank of junior professor as an introductory academic position to strengthen German universities by reducing the time required for entry into the academy.136 Three Land governments under CDU or CSP control brought an abstract judicial challenge to this law arguing that it interfered with the states’ exclusive power over education. The Constitutional Court agreed that the federal law challenged in the Junior Professors Case was unconstitutional. As in the Concordat Case, the court held



130

Id. at 122. Id. at 123. 132 Id. 133 Id. 134 Id. at 123. 135 Id. at 139–​43. 136 Id. 131

The Federal Republic of Germany  91 that state control over education was a constitutional prerogative of the sixteen states. Another federal law was thus held unconstitutional for infringing on state prerogatives. Professors Kommers and Miller note that “[w]‌ith the elimination of Article 75 in the 2006 federalism reform, at least one subject previously covered by the federation’s framework legislative competence was added to the federation’s exclusive legislative competence under Article 73 (protection of German cultural artifacts). Other subjects previously covered by Article 75 were reassigned to the concurrent legislative competence under Article 74.”137 This seems to be a qualified victory for the länder, on balance, at least with respect to education and culture, where state power has long been most important.138 The final modern federalism case that is of seminal importance is the Geriatric Nursing Act Case, 106 BVerfGE 62 (2002).139 This case addressed a matter as to which the German federal and state governments had concurrent power. As Kommers and Miller explain, a new federal law was passed affecting geriatric nursing care by establishing the professions of geriatric nurses and geriatric assistants. In addition, the law involved provisions on the purpose and duration of training one needed to enter these professions. Prior to the federal law’s adoption, there had been widespread differences among the German states on this matter. Germany’s rapidly aging population caused the government to think that one, national, uniform approach was needed. The Land of Bavaria disagreed, however, and brought an abstract judicial review challenge to the federal laws’ constitutionality. Bavaria argued that the federation lacked the competence to regulate the field under Article 74(1)[19]. Bavaria also argued that, even accepting the federation’s competence to enact the law, the “essential” prerequisite of Article 72(2) had not been met. The court held that the federation was competent to regulate the profession of geriatric nurses under its concurrent legislative authority, but not the profession of geriatric assistants. The court then held that the challenged regulation of geriatric nurses was essential. In the Geriatric Nursing Case, an American constitutional law professor could say—​with tongue in cheek—​that the Constitutional Court read the word “necessary” in the translation above as meaning “essential,” whereas in McCulloch v.  Maryland, 17 U.S. 316 (1819), Chief Justice John Marshall famously read the word “necessary” as meaning “convenient” or “useful to,” rather than as meaning “indispensable” or “essential.” In National Federation of Independent v. Sebelius, 567 U.S. _​_​_​, 132 S.Ct 2566 (2012), five justices on the U.S. Supreme

137 Id. at 142. 138 For a more complete discussion of the division of competences following the 2006 reforms of the federal and Land governments, see id. at 143–​50. 139 Id. at 131–​39.

92  the History and growth of Judicial Review, Volume 2 Court—​ Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito—​all read the phrase “necessary and proper” as being more constraining of Congress than anyone had thought it to be in any Supreme Court case decided since 1937, and they held that the question was justiciable. Professors Kommers and Miller add in their note following the Geriatric Nursing Case that “[i]‌n the Dangerous Dogs Case (2004) [a federal law] was challenged by dog breeders as a violation of the right to occupational freedom secured by Article 12 of the Basic Law. The Court concluded that the law represented a limitation upon occupational freedom, and further concluded that the law did not constitute a “regulation” of the practice of a profession as permitted by Article 12 (1) because the federal government lacked the competence to legislate in the field. . . . Following the standards announced by the Second Senate in Geriatric Nursing, the court concluded that the legislation had not satisfied the “essential” prerequisite of Article 72 (2).”140 Kommers and Miller add that “[i]‌n the Shop Closing Act Case (2004),” the court read federal power more broadly, but they note that “[t]he controversy over the authority to liberalize German’s shopping hours has, in any event, been resolved in favor of the Länder by one of the reforms of 2006.”141 “By November 2006 some Länder [e.g. Berlin] had already acted to liberalize store opening hours” in a move that was opposed “by unions and churches (at least as far as Sundays are concerned),” but favored by business and consumer groups.142 The judicial enforcement of federalism and of subsidiarity in Germany is striking because the European Union has constitutionalized a subsidiarity requirement that the European Court of Justice (ECJ) has embarrassingly refused ever to invoke. In doing so, the ECJ has set back the cause of pan EU growth immensely and has given the nationalist opponents of the EU a cudgel to use against pro-​EU politicians in national domestic elections. In the United States, the judicial test as to many federalism cases involves asking “whether a wholly intrastate activity substantially affects interstate commerce.” No one in the United States knows what “substantially” means in the U.S. doctrinal test, and I think that judicial enforcement of subsidiarity would be a good idea, as I explain in a chapter that I co-​wrote in a book titled Nomos LV Federalism and Subsidiarity.143



140

Id. at 136–​37. Id. 142 Id. 143 Calabresi & Bickford, supra note 117, at 128–​89. 141

The Federal Republic of Germany  93

C.  Separation of Powers Umpiring In addition to acting as a vigorous federalism enforcing umpire in German constitutional law, the German Constitutional Court has also acted as a separation of powers umpire in two contexts, each of which I will discuss. This is not surprising because German separation of powers law is haunted by a specter—​The Enabling Act of 1933 by which the Weimar Republic’s legislature transferred all of its legislative powers to Adolph Hitler. This proved to be a key step in Hitler’s meteoric but technically democratic rise to the position of being an absolute dictator. I thus begin with Germany’s non-​delegation doctrine, which is a body of case law that the U.S. Supreme Court could well learn from.

1. The Non-​Delegation Doctrine in Germany Article 20 (2) of the Basic Law of the Federal Republic of Germany provides that “All state authority emanates from the people. It shall be exercised by the people through elections and voting and by specific legislative, executive, and judicial organs.” Article 20(2), which the German Constitutional Court has described as constitutionalizing the separation of powers, is an unamendable feature of the Basic Law because it is immunized from amendment by the Eternity clause of Article 79(3). Even though Germany has a parliamentary form of government, it also emphatically follows the separation of powers principle. A distinctive feature of the German separation of powers is that [m]‌ost federal laws are carried out not by federal officials but by the constituent states (“Länder;”), and even the federal administration is given a degree of independence from political pressure. Thus principles both of federalism and of civil service compensate to a significant extent for the structural symbiosis of the parliamentary model; even at the structural level, there is more separation of powers in Germany than a first look at the parliamentary system might suggest. Furthermore, the undeniable American advantage with respect to structural separation is matched by a marked German advantage in separation of functions. Only the legislature may make laws, only the executive may enforce them, and only judges may adjudicate. Not only is the executive bound by laws and in many respects permitted to act only on the basis of statutory authority; but in Germany there are also meaningful and judicially enforced limits to the delegation of legislative power. With rare exceptions, there are no independent agencies with executive powers; most enforcement authority is ultimately subject to ministerial control. Finally, there are no quasi-​judicial agencies in the American sense of the term; if administrators decide concrete individual disputes, their decisions must be subject to de novo judicial review on questions of law and fact.144

144

Currie, supra note 1, at 103–​4.

94  the History and growth of Judicial Review, Volume 2 Article 80(1) of the Basic Law has been construed, by the German Constitutional Court, as forbidding open-​ended delegations of legislative power. It provides that “The Federal Government, a Federal Minister, or the Land governments may be authorized by statute to issue regulations. The content, purpose, and scope of the authorization so conferred shall be specified in the statute. Each regulation shall contain a statement of its legal basis. If a statute provides that such authorizations may be delegated, such sub-​delegations shall require another regulation.”145 In its very first substantive decision, the [German Constitutional] Court struck down on the basis of Article 80(1) a provision authorizing the Minister of the Interior to adopt any regulations “necessary for the execution” of a statute respecting the rearrangement . . . of Länder in what is now Baden-​Würtemmberg. In contrast to the practice of the Weimar period, the Court said that: [t]‌he Basic Law in this as in other respects reflects a decision in favor of a stricter separation of powers. The Parliament may not escape its lawmaking responsibilities by transferring part of its legislative authority to the executive . . . without considering and precisely determining the limits of the delegated authority. The executive, on the other hand, may not step into the shoes of Parliament on the basis of indefinite provisions authorizing the promulgation of regulations. [1 BVerfGE 14, 60 (1951)]

The authorization before them, the justices concluded, was so indefinite that it was impossible to predict when and how it would be employed or what the resulting regulations might say. It therefore failed to specify the content, purpose, and extent of authority conferred, as the Basic Law required, and the court held the law unconstitutional.146 “This decision by no means stands alone.”147 “In 1958, for example, the [Constitutional] Court invalidated a delegation of power to adopt regulations ‘to compensate for the differential burdens imposed by the transfer tax’ upon firms that were or were not vertically integrated. [The Constitutional Court said] there were no generally accepted standards * * * for determining whether a firm was vertically integrated [or not].”148 The statute in question impermissibly left it up to the executive to decide whether to increase or decrease the tax on any particular firm, and “did not even require the executive to impose a tax at all.”149 This, the Constitutional Court said, violated the rule of law. Authorization from

145

Id. at 126, 375–​76 (emphasis added). Id. at 126–​27. Id. at 127. 148 Id. 149 Id. (citing 7 BVerfGE 282 (1958)). 146 147

The Federal Republic of Germany  95 Parliament had to be specific enough so that one could tell from the face of the law itself what it demanded from the citizens.150 Professor Currie contrasts this German case with the U.S. Supreme Court’s non-​delegation doctrine decision in Field v. Clark, 143 U.S. 649 (1892), which upheld “delegations of authority to adjust tariffs to compensate for unreasonable foreign duties and for low foreign production costs respectively.”151 Professor Currie mentions a number of additional German Constitutional Court decisions that invalidated laws on non-​delegation doctrine grounds. For example, “[i]‌n 1962 the Constitutional Court struck down a grant of authority to prescribe average values for ‘specific articles or groups of articles’ for purposes of a compensatory tax on imported goods, in lieu of determining the value of each individual item.”152 “In 1964, it struck down an authorization to define the statutory term ‘ton-​kilometer’ for purposes of determining the amount of a tax on the transportation of freight. * * * There were various ways of determining both weight and distance, the Court said, and the statute did not clearly choose among them.”153 Professor Currie does acknowledge that in an important 1958 decision analogous to Yakus v. United States, 321 U.S. 414 (1944), the German Constitutional Court upheld a delegation of authority to the executive branch “to promulgate regulations by which ‘prices, rents, fees, and other charges for goods and services of all kinds, with the exception of wages, are established or approved, or price levels are maintained.’ ”154 The court said that the Basic Law does not require that “the content, purpose, and extent of the delegation appear expressly in the statutory text; resort could be had to such ordinary interpretive tools as purpose, context, and legislative history to illuminate the legislative will. * * * [T]‌he Statute [is not] too indeterminate in specifying content of delegated authority.”155 Professor Currie concludes that, in this case, the court construed the legislation narrowly in light of historical practice.156 Professor Currie concedes that “[l]‌ater German decisions have tended to follow the price-​control case rather than the less sympathetic decisions noted above. The Constitutional Court has continued, however, to find delegations unconstitutionally broad. Most strikingly, it has generally done so not on the basis of Article 80(1) but of other provisions that the Court has found to embody a similar nondelegation principle.”157 Thus, in 1988, “the Court struck down a statute making it a crime to violate any condition of a permit for the erection,

150

Id. at 127. Id. at 127 n.130. 152 Id. at 127–​28 (citing 15 BVerfGE 153 (1962)). 153 Id. at 128 n.132 (citing 18 BVerfGE 52 (1964)). 154 Id. at 128 (citing 8 BVerfGE 274 (1958)). 155 Id. at 128. 156 Id. at 127–​28. 157 Id. at 129. 151

96  the History and growth of Judicial Review, Volume 2 modification, or operation of broadcasting facilities.”158 The statute created no meaningful limitations on authority to impose permit conditions and thus violated Articles 103(2) and 104(1), which provide that “one may be punished only for an offense previously defined by law.”159 Professor Currie adds that “[i]‌n an important later decision the Court effectively traced the non-​delegation doctrine to the constitutional guarantee of democracy as well [citing 33 BVerfGE 125, 158 (1972).] * * * By permitting restrictions of occupational freedom only on the basis of statute, the Court added, Article 12(1) made it basically the responsibility of the legislature ‘to determine which public interests are so weighty that the individuals right to liberty must take second place. * * * The democratic legislature may not abdicate this responsibility at its pleasure. In a governmental system in which the people exercise their sovereign power most directly through their elected Parliament, it is the responsibility of this Parliament above all to resolve the open issues of community life in the process of determining the public will by weighing the various and sometimes conflicting interests.’

* * * [T]‌he requisite specificity varies with the degree to which the delegated authority impinges upon fundamental rights.”160 Delegations can be made to professional associations to regulate the conduct of their own members, but “the legislation must set forth those provisions which ‘essentially * * * characterize the image of the professional occupation as a whole.’ ”161 Professor Currie concludes his discussion of the non-​delegation doctrine in Germany by saying that: The decisions are numerous and not at all easy to reconcile. They document the difficulty and uncertainty of administering a requirement that is necessarily a matter of degree. Yet in reading them it is difficult to escape the conclusion that we have lost something significant that the Germans have worked hard to maintain. For over the years the Constitutional Court has devoted itself diligently to the task of assuring that major policy decisions respecting the content of the law are made by the representative and popularly elected legislature, as they should be in a republican democracy—​a task with which our Supreme Court has not seriously concerned itself since 1936.162 158 Id. at 130. 159 Id. at 130 (citing 78 BVerfGE 374 (1988)). 160 Id. at 32. 161 Id. at 133 (citing 33 BVerfGE at 160). 162 Id. For a helpful background discussion of the separation of powers and the non-​delegation doctrine in Germany, see Kommers & Miller, supra 3, at 152–​53, 175–​89. They excerpt edits of the Emergency Price Control Case (1958) 8 BVerfGE 274, discussed before; Kalkar I Case (1978) 49 BVerfGE 89; Chicken Regulation Case (1999) 101 BVerfGE 1; and Judicial Qualification Case (1972) 34 BVerfGE 52.

The Federal Republic of Germany  97 The foundational German non-​delegation case is the Kalkar I Case, decided in 1978, Kalkar Case I, 49 BVerfGE 89 (1978). It upholds a delegation of power in the Atomic Energy Act to licensees who must take “every necessary precaution in the light of existing scientific knowledge and technology to prevent damage resulting from the construction and operation of the [Nuclear Power Plant] installation.”163 A farm owner living within a mile of the proposed nuclear power plant sued to block the license to run the plant on the ground that his rights to life and personality were invaded. The state of North Rhine-​Westphalia sued saying that Parliament had violated the non-​delegation principle by not being more specific in setting forth concrete criteria for the construction of fast breeder reactors than those in the Atomic Energy Act. The Constitutional Court upheld the delegation of power at issue in this case. This seems to me to be a reasonable conclusion. Tasking an executive agency with determining whether a nuclear installation licensee has taken “every necessary precaution in the light of existing scientific knowledge and technology to prevent damage resulting from the construction and operation of the installation” is a much narrower delegation of legislative power than authorizing the president to promulgate “fair codes of competition” devised by private groups of industry and labor, which may seek advantages for themselves at the expense of consumers for every industry in the nation, which the U.S. Supreme Court struck down in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Professor Currie describes Kalkar I as a major opinion that requires that the legislature make “all essential decisions,” especially when it legislates in ways that may affect rights guaranteed in the Basic Law.164 There is a very important additional holding of Kalkar, which is that “Scientific knowledge and technology change so rapidly that it is better to use a broader formula in the law than to amend the law with every change in science and technology.” All in all, Germany learned a lesson from the Enabling Act of 1933, which the U.S. Supreme Court would do well to heed, but it also recognizes that with respect to science and technology, there may be a need to delegate. Professors Kommers and Miller discuss the German Non-Delegation doctrine on pages 175 to 189 of their 2012 Treatise, and they confirm that the law in this area has not changed since Professor Currie’s death in 2007.

2. Parliamentary Dissolution A second lesson that constitutionalists have drawn from the experience of the Weimar Republic and the rise to power of Adolf Hitler in Germany is that just as it is a bad idea to allow for unlimited delegations of lawmaking power, so too is it a bad idea to make it very easy for the president or prime minister to dissolve



163 164

Kommers & Miller, supra note 3, at 177. Currie, supra note 1, at 133.

98  the History and growth of Judicial Review, Volume 2 Parliament and call new elections. Professor David Currie notes that “[u]‌nder the Weimar Constitution the Reichsprasident could dissolve the assembly at will, so long as he did not do so more than once for the same cause. The results were instability, external control of Parliament, and impairment of representative democracy.”165 Professors Donald Kommers and Russell Miller further explain that: The Basic Law’s scheme of separated powers involves a system of checks and balances rare among parliamentary democracies and considerably at variance with the volatility permitted by the Weimar Constitution of 1919. In contrast to the Weimar Constitution, the Basic Law makes governmental stability a chief aim of the separation of powers. To that end, the chancellor holds a more secure position in the Federal Republic’s governing system. The Basic Law provides for a vote of no confidence in only two situations. First, Parliament may initiate the procedure pursuant to Article 67, but a vote of no confidence is insufficient to drive a chancellor out of office. Parliament may remove the chancellor only when a majority of its members simultaneously elects a successor, a procedure known as a constructive vote of no confidence. Second, article 68 allows the chancellor to initiate a vote of no confidence and to authorize him or her, if the vote shows a lack of confidence, to request the President to dissolve Parliament and call for new elections. The decision to dissolve is the president’s alone, and he or she may decline the chancellor’s request if it seems the motion to dissolve Parliament was little more than a political scheme on the part of the majority coalition to shore up its position by holding a new federal election.166

A constructive vote of “no confidence” has only succeeded once in driving a federal chancellor out of office since 1949, but on three occasions—​in 1972, in 1982, and in 2005—​“the chancellors deliberately ‘lost’ confidence votes to set the stage for new elections.”167 Kommers and Miller explain that these false no-​ confidence votes have been widely criticized, and that the Constitutional Court was asked to evaluate their constitutionality in 1983 and in 2005. The court, in both cases, deferred to the president, the chancellor, and the majority of the Bundestag, and allowed the holding of new elections, but only after it had independently concluded that a situation of instability existed. These decisions were, however, quite controversial. Many believe that they were wrongly decided, and only five justices voted for the opinion in the 2005 case.168 165 Id. at 113. 166 Kommers & Miller, supra note 3, at 154. 167 Id. at 155. 168 See Parliamentary Dissolution Case II (2005) 114 BVerfGE 121, in Kommers & Miller, supra note 3, at 156–​62.

The Federal Republic of Germany  99 It should be noted that the French Constitution of the Fifth Republic explicitly forbids the president of France from dissolving the National Assembly and calling for new elections during a state of emergency. This, too, is a reaction to the abuses that occurred during the Weimar Republic.

D.  Individual Fundamental Rights and the Basic Law A specter hangs over the Basic Law’s protection of individual fundamental rights, and it is the specter of the Holocaust and of Nazism. The Basic Law’s response can be found in the first three articles of the Basic Law, which are part of the Bill of Rights, which appears first in the Basic Law ahead of the structural provisions on federalism and separation of powers. Dieter Grimm correctly observes that “Fundamental Rights in Germany are older than the Basic Law. But only under the Basic Law did they gain the full and unprecedented effect which they enjoy today.”169 The first three articles of the Basic Law say it all, and they read as follows: Article 1 [Human dignity—Human rights—Legally binding force of basic rights] (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law. Article 2 [Personal freedoms] (1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. (2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. Article 3 [Equality before the law] (1) All persons shall be equal before the law.



169

Grimm, supra note 1, at 161.

100  the History and growth of Judicial Review, Volume 2 (2) Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist. (3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.

Dieter Grimm notes that in fundamental rights cases under the Basic Law, (1) rights are broadly and purposively protected, (2) there is a wide definition of infringement, and (3) the Constitutional Court engages in a searching proportionality analysis to determine if a right has been violated in a particular case. There is no true equivalent to proportionality analysis in U.S. constitutional law, although it is also used in Canadian, South African, and Israeli constitutional law.

1.  Lüth’s Case The Basic Law’s response to Nazism and the Holocaust is to make the protection of human dignity the first cornerstone fundamental right in the German Constitution. Article 79(3) of the Basic Law makes Article I’s protection of human dignity unamendable. The Constitutional Court’s vigorous protection of human dignity is thus foundational to its construction of the rest of the Basic Law. Just as the Southwest Case was a Marbury v.  Madison constitutional moment for Germany’s structural constitution, so too was another case a Marbury v. Madison constitutional moment for the construction of the Basic Laws fundamental, individual rights. In Lüth’s Case, 7 BVerfGE 198 (1958), the German Constitutional Court committed itself to a very strong expression of freedom of speech, and it also held that the Basic Law was part of a hierarchy of norms that permeate private law such that the Basic Law may either give or deny to one private person the right to sue another private person. This is called the “horizontal application” of constitutional rights and is a distinctively German idea that has now spread to many other constitutional democracies around the world, including Canada and South Africa, as well as to the European Court of Human Rights. My discussion of Lüth’s Case, which will follow, is drawn directly from comments given to me on this chapter of my book by Dieter Grimm, a former Constitutional Court justice and a greatly distinguished German law professor.170 I am deeply in his debt for the paragraphs below, which describe the impact of Lüth’s Case.

170 The next few paragraphs on the Lüth case are drawn directly from some very helpful comments given to me by Dieter Grimm.

The Federal Republic of Germany  101 In Lüth’s Case, the complainant Lüth was a civil servant in the Senate of the Free Hanseatic City of Hamburg and head of the State Press Office, and he gave an address, in his private capacity as president of the Hamburg Press Club, to an audience of film distributors and directors. He said, inter alia, about Veit Harlan, who had been the Nazi film director Number 1 that Harlan was the person least likely to restore the claim to morality, which the German film industry forfeited during the Third Reich; that Veit Harlan was the man who directed Jud Süss and wrote the script for it; and that if this very man is chosen to represent the German film industry, who can tell what harm we may suffer throughout the world? True, Lüth acknowledges that Harlan was acquitted in a formal sense in Hamburg, but substantially the judgment was a condemnation. We must call on the distributors and cinema owners to show character—​not cheap, but worth the price. And I want the German film to show character as well. If it shows character in its imagination, visual daring and sterling craftsmanship, it will merit every assistance and achieve what it needs in order to survive: success with the public here in Germany and abroad. Lüth argued that the film Jud Süss showed Harlan to be a committed exponent of the Nazis’ murderous purge of the Jews. Lüth said it is not only the right but the duty of all decent Germans to protest against, and even to boycott, this ignominious representative of the German film industry. The movie producers and distributors sued for and obtained an injunction against Lüth’s call for a boycott of Harlan’s film, but Harlan did not sue himself. Lüth then appealed to the German Constitutional Court alleging that the court order against his call for a boycott of Harlan’s film violated his right to freedom of expression under Article 5 of the Basic Law. The German Constitutional Court agreed, and it allowed Lüth to proceed with his called-​for boycott of Harlan’s film. The court not only expansively construed Article 5’s protection of freedom of expression, but it also held that the Basic Law applied horizontally to a lawsuit between two private parties and not merely to lawsuits between a private party and the government. Both Lüth and the filmmaker he was boycotting were private parties, yet the Constitutional Court held in this case that the constitutional right of freedom of expression trumped the filmmaker’s right to sue Lüth over his boycott. Is this a legitimate interpretation of the Basic Law? Should constitutions only protect individuals from the government, or ought they also to structure the relationship of one private person to another? Lüth was a freedom of speech case, but its importance tells us much more in what it says about fundamental rights in general. It was the starting point for unfolding a whole theory of fundamental rights. So every professor who teaches constitutional law in Germany spends about half his course describing how all fundamental rights apply, and only the second half of the course focuses on what the individual fundamentals are and what their

102  the History and growth of Judicial Review, Volume 2 content is. This is totally unlike the situation in the United States where fundamental constitutional rights do not permeate the whole legal system. Before Lüth, fundamental rights were regarded as subjective rights or individual entitlements. After Lüth, they were in addition to objective principles, legal expressions, legal expressions of values, even the highest and most fundamental of values. And, they stood not alone, but formed a system of values, which meant they had to be interpreted to apply to the entire legal system and not merely to be isolated to constitutional law. Before Lüth, fundamental rights applied only vertically between the citizen and the state. After Lüth, constitutional rights also applied horizontally between one citizen and another citizen, however not directly so no citizen has a right against another citizen but indirectly. The relationship between two private citizens remains to be regulated by private law. But, this private law has to be interpreted in light of the constitutional norms, which have a sort of radiating effect on the whole legal system. A consequence of this is that whereas before Lüth, the constitution had done its job when a law was found to be constitutional, but after Lüth, fundamental rights permeate the whole of private and ordinary law. So a court decision is not only unconstitutional when it is based on a law that violates the Constitution, but also when it does not take fundamental rights into account when interpreting the Constitution and applying a law. Before Lüth, fundamental rights were only negative rights. That is to say, they prevented the government from taking certain actions. After Lüth, they were positive rights, meaning that they oblige the state to take action if a fundamental right is not menaced by state action but is menaced by private action. The positive dimension comes as an obligation of the legislature to legislate, which may be enforced by the Constitutional Court. The last consequence of Lüth is the obligation of the legislature to legislate to protect fundamental rights. This consequence appears not in Lüth but in the Abortion I Case, which will be discussed next. Lüth’s Case illustrates a key feature of the Basic Law, which is that the rights it creates are normatively hierarchical to statutes and regulations, and the Basic Law’s hierarchy of norms thus affects the decision of all ordinary cases. As Dieter Grimm puts it, “The difference between previous German constitutional orders and the Basic Law is thus evident: presently, fundamental rights are omnipresent in the legal order and in the political and social life of Germany. This would have been impossible but for the Federal Constitutional Court. It would also have been impossible if the Court had continued to use the interpretive methods of earlier times.”171 The Basic Law creates a real hierarchy of norms, which permeate the



171

Grimm, supra note 1, at 180.

The Federal Republic of Germany  103 entire legal system in a way that the Constitution of the Weimar Republic or of Imperial Germany never did. I should note, yet again, that in its protection of individual rights against oppression, German judicial review was openly driven by the right from wrongs theory of Alan Dershowitz. The great moral wrongs committed by the Nazis gave rise to the rights of the Basic Law and to the growth of judicial review to protect those rights.

2. Other Modern Individual Rights Cases The decision in Lüth’s Case foreshadowed a very impressive body of case law protecting individual fundamental rights. We shall mention only some of the highlights of that body of case law here. From the outset, Germany has constitutionally barred the death penalty because Article 3 of the Basic Law protects everyone’s right to life. In 1977, the German Constitutional Court took the extraordinary step of banning life imprisonment in the German Life Imprisonment Case (45 BVerfGE 187) in some cases. Life imprisonment still exists in Germany, but the prisoner must have a chance through a parole hearing but not a guarantee that he will be released earlier. The court held that life imprisonment without a possibility of earlier release through parole destroys a person’s psyche and prevents the free development of their personality. It was thus inconsistent with Article I of the Basic Law’s commitment to Human Dignity—​the cornerstone right in German constitutional law. Prisoners are detained for life because they are being used as a means toward the end of deterring other people from committing crimes. This violates the Kantian underpinnings of the Basic Law. This case is an extraordinary rights-​protective case, in my opinion excessively so, but it does show how committed the German Constitutional Court is to Kantian fundamental rights. The Constitutional Court followed up this holding with the Youth Imprisonment Case (2006), which put limits on the government’s power to punish juveniles between the ages of fourteen and eighteen and young offenders between the ages of eighteen and twenty-​one. The court emphasized the need for resocialization of these offenders. The Constitutional Court has also limited the government’s powers of preventive detention in the Preventive Detention II Case (2004), which struck down the preventive detention laws of Bavaria and Saxony-​ Anhalt as being impermissibly punitive of sex offenders. In The Spinal Tap Case, 16 BVerfGE 194 (1963), the German Constitutional Court protected the right to bodily integrity for a person who was being investigated for his refusal to complete questions on an official form regarding his stock holding and for refusing to pay a fine. The ordinary German courts were concerned that the individual in question might have a mental disability so they ordered that a spinal tap be done. The complainant argued to the German

104  the History and growth of Judicial Review, Volume 2 Constitutional Court that a spinal tap was very painful, highly intrusive on his right to bodily integrity, and would yield no information of value. The German Constitutional Court sided wholeheartedly with the complainant, and it overturned the lower court order of a spinal tap in this case as being highly disproportionate to what the complainant had done. The case stands for the principle that the Basic Law protects the right to bodily integrity—​an invaluable right along with the right to life and the right to be free of life imprisonment. Article II of the Basic Law provides that (1) “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.” In the Hashish Drug Case (1994), several of the ordinary courts had called into question prison sentences for the use of hashish and marijuana. The Constitutional Court sustained the criminalizing of these drugs, but it advised Parliament that their possession and use in small amounts ought to be decriminalized. The court has also limited Parliament’s power to force individuals to fill out detailed census questionnaires in the Census Act Case (1993), and it has protected the right to privacy in the Princess Soraya Case (1973). In the area of anti-​discrimination law, the Germans amended their equivalent to the U.S. Equal Protection Clause to explicitly allow for affirmative action for women. Article 3 of the Basic Law now accordingly reads that: Article 3 [Equality Before the Law] 1. All persons shall be equal before the law. 2. Men and Women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist. 3. No person shall be favored or disfavored because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavored because of disability.

The German version of the American Equal Protection Clause is noteworthy to Americans because it bans sex discrimination ahead of race discrimination and because it explicitly allows for affirmative action on the basis of gender. The U.S. Supreme Court, even today, applies strict scrutiny in race discrimination cases but only skeptical scrutiny that serves an exceeding persuasive justification in sex discrimination cases. The standard for sex discrimination in the United States is set in United States v. Virginia, 518 U.S. 515 (1996), a case that held unconstitutional sex discrimination at the state of Virginia’s all-​male military institute. The German Constitutional Court issued an important sex discrimination ruling in the Nocturnal Employment Case, 85 BVerfGE 191 (1992). A German

The Federal Republic of Germany  105 law made it illegal for women to do night work for safety and gender-​stereotyping reasons, and the German Constitutional Court held the law in question to be unconstitutional. The court held the law in question to be in violation of Article 3, thus striking an important victory against sex discrimination. This case was foreshadowed by a 1991 Constitutional Court ruling in the Common Marital Name Case, which held unconstitutional ancient provisions of German law, which required married couples to use the surname of the husband in the event the spouses could not agree on a surname. In The Machinist Case (1993), the Constitutional Court put to rest any doubts about the constitutionality of sex-​ based affirmative action. In 1978, thirty-​nine years ago, the Constitutional Court in the Transsexuals I Case I (49 BVerfGE 286), held that transsexuals had the constitutional right to change their gender on official documents whether or not they had surgery. The court said core elements of human dignity were at stake here as well as the right of transsexuals to the free development of their personalities. Germany is light years ahead of the United States in according constitutional rights to transsexuals. Former President Trump, in the United States, misguidedly tried to ban transsexuals from the U.S. Armed Forces over the objections of his first, and best former secretary of defense Jim Mattis. In the Transsexuals Youth Case (1982), the Constitutional Court held that a statute that required that transsexuals be twenty-​five to have a sex-​change operation was unconstitutional. In the Transsexuals II Case, 88 BVerfGE 87 (1993), the Constitutional Court held that notwithstanding the right of transsexuals to change their gender following a sex-​change operation, Parliament does have the power to regulate transsexualism so long as it did not impose an age limit or prevent transsexuals from changing their sex. In the Transsexuals III Case (2005), the Constitutional Court held that the right to change one’s sex was held equally by heterosexuals and homosexuals. In sum, Germany is light years ahead of the United States on this issue. In the Integrated Education Case, 96 BVerfGE 288 (1997), the Constitutional Court rejected a challenge by a disabled schoolgirl with spina bifida that she attend a special school for the disabled rather than an ordinary public school. In the area of freedom of expression, the German Constitutional Court has held that the right to human dignity trumps the right to freedom of expression. In the Mephisto Case, 30 BVerfGE 173 (1971), the court suppressed the publication of a book by Klaus Mann, who was the son of Thomas Mann, one of the greatest German authors of the twentieth century, about a character called Mephisto, who is a thinly disguised portrayal of the rise of Gustaf Gründgens who had been a friend of Mann, was briefly married to Mann’s sister, and who was a traitor par excellence in collaborating with the Nazis. The Constitutional Court said the novel was an attack on Gründgens’s human dignity, and it forbade publication

106  the History and growth of Judicial Review, Volume 2 of the book. In the Boell Case, 54 BVerfGE 208 (1980), the Constitutional Court complained that Boell was defamed in an article about the murder in 1974 of the president of the Berlin Court of Appeal by terrorists. A public intellectual, Heinrich Boell, a Noble Prize winner was accused of columns, which encouraged terrorism even though he was a public intellectual of the highest distinction. Boell was a convinced democrat. The court ruled for Boell, who in the United States would have been a public figure who could not have been sued over his freedom of political expression nor could Gustaf Gründgens’s heir have sued to block the book Mephisto, which is for sale in the United States in English on amazon.com. The fact that the Mephisto and Boell Cases, which would come out differently under U.S. constitutional law, reveals that human dignity in the form of reputation trumps freedom of expression in Germany whereas in the United States, freedom of expression is the cornerstone of our fundamental rights. This shows a profound difference between American constitutionalism, which is driven by Lockeanism; and German constitutionalism, which is driven by Kantian concerns with human dignity. In the Political Satire Case (1987), a vicious parody of Franz Josef Strauss was held to violate his right to human dignity at about the same time that the U.S. Supreme Court relied on the First Amendment to block a tort suit about a vicious parody brought by religious leader Jerry Falwell, who was a public figure, on First Amendment grounds.172 In Flag Desecration (1990), the court upheld the flag desecration before it on the grounds it constituted art, but it upheld at least some applications of the German federal anti-​flag desecration act. In contrast, the U.S. Supreme Court in Texas v. Johnson (1989) held that all statutes forbidding flag desecration were per se unconstitutional under the First Amendment to the U.S. Constitution. In the area of freedom of religion, German taxpayers openly fund religious schools while that issue is hotly contested in the United States. In the Classroom Crucifix Case II, BVerfGE 1 (1987), the German Constitutional Court overruled an earlier decision and held that crucifix displays on classroom walls violated the religious freedom of non-​Catholics. The U.S. Supreme Court would agree with this should the issue arise here. The leading free exercise of religion case is Rumpelkammar (24 BVerfGE 236) in which the court held that the Constitution protects religiously motivated actions as well as beliefs in this case allowing Catholic priests and youths to use churches to collect used clothes for the poor. In 2015, the Constitutional Court held that a general ban on the wearing of headscarves by teachers at state-​supported schools was unconstitutional on freedom



172

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

The Federal Republic of Germany  107 of religion grounds.173 This is a strikingly progressive pro-​religious freedom opinion that would accord with U.S.  law but not with French law where the wearing of headscarves in schools is banned. The German Constitutional Court is also leagues ahead of the United States on economic liberties case law. In the Pharmacy Case, 7 BVerfGE 377 (1958), the court held that the Basic Law provision protecting the right to pursue the occupation of one’s choosing entitled a licensed East German pharmacist to set up shop in competition with existing West German pharmacists. It is arguably in the Pharmacy Case that the Constitutional Court’s use of proportionality review began to creep into the Constitutional Court’s opinions. Today, proportionality review is a key feature of German constitutional law just as it is a key feature of Canadian constitutional law. In the Chocolate Candy Case, 53 BVerfGE 138 (1980), the court held the government could not bar sales of hollowed-​out chocolate candy, and, in the East German Disbarment Case, 93 BVerfGE 213 (1995), the court held that the freedom to pursue their occupation allowed two out of three former East German defense attorneys who had collaborated with the East German police to practice law in reunified Germany. In the Monument Protection Case, 100 BVerfGE 226 (1999), the Constitutional Court held that a state-​issued historic preservation act of a nineteenth-​century villa so completely prevented the company, which owned the villa that the law amounted to a regulatory taking, which the government had to compensate the owner for. Regulatory takings law has been a hot bone of contention in recent decades on the U.S. Supreme Court, and so this decision is quite striking to American readers. The German Constitutional Court has issued two opinions, which are protective of fetal life from fourteen days after conception.174 In these cases, the majority opinions, over spirited dissents, held that human dignity and the right to life under the Basic Law attached to a fetus from fourteen days after conception on. In practice, the legislature pushed back hard on these cases, and first trimester abortions are available in Germany although they may not be called “legal.” The liberalization of abortion law was a key demand of the former government of East Germany, which had grown accustomed to abortion on demand under the communist regime there. Germany has also, unlike the United States, protected the right of private citizens to government aid in certain contexts. Thus, in the Numerus Clausus I Case, 33 BVerfGE 303 (1972), the Constitutional Court held that Parliament needed to take appropriate measures to make more positions available in medical schools for students who wanted to pursue a medical occupation. The court has also issued opinions on questions concerning how much aid the poorer German states 173 1 BVerfGE 471/​10 (2015). 174 German Abortion I Case, 39 BVerfGE 1 (1975); and German Abortion II Case, 88 BVerfGE 203 (1993).

108  the History and growth of Judicial Review, Volume 2 are entitled to receive from the richer German states. The poorer states do not have a fundamental right to financial aid because fundamental rights are restricted to private individuals. All in all, German judicial review has flourished, and the powers of the Constitutional Court in Germany have grown enormously in the years since 1949. This is illustrated by our next subject, which is the absence of a political question doctrine in Germany. Dieter Grimm explains this phenomenon by saying that “basic rights became dedicated to the defense of bourgeois interests because they were interpreted in a certain way, and not because of the basic rights themselves. Thus, it appears only consistent that corrections to the Basic Law from a social-​state perspective are derived not from the content of the basic rights but from their function.”175 Dieter Grimm has explained to me that the Constitutional Court, with the exception of dignity, treats all fundamental rights as being of the same rank. But, sometimes the court uses language that suggests that there is a certain hierarchy of rights. Decisions of the Constitutional Court are published in the Official Gazette only when they declare laws unconstitutional, and only the ruling is published and not the whole opinion. German judicial review was not simply borrowed from the Czechoslovakian and Austrian interwar constitutional courts because those courts had far fewer broad powers than the German Constitutional Court has.

E.  The Political Question Doctrine in Germany The German Constitutional Court formally denies that it has a political question doctrine whereby some issues of constitutional law are non-justiciable. Nonetheless, in practice, the otherwise very activist German Constitutional Court has often deferred to the debatable judgment calls of democratically elected officials in cases involving foreign affairs or parliamentary dissolution. For example, in the Rudolf Hess Case (1980), Kommers and Miller explain that Hess’s son filed a constitutional complaint over the failure of the West German government to ask the World War II Allied powers to release Hess from the Berlin-Spandau Military Prison where he had been in solitary confinement since 1967 following his sentence to life imprisonment by the Nuremberg War Crimes Tribunal. “The Court accepted the complaint, implying that it was justiciable, but proceeded to write an opinion in which some scholars have found the seeds of a political questions doctrine.”176 As Kommers and Miller go on to say: Hess underscores the broad discretion enjoyed by governmental organs in dealing with political matters: ‘The breadth of this discretion in foreign affairs

175 176

Grimm, supra note 1, at 85. Kommers & Miller, supra note 3, at 197.

The Federal Republic of Germany  109 has its basis in the nature of foreign relations,’ said the Second Senate. ‘Such events are not governed solely by the will of the federation,’ the Court continued, ‘but rather are dependent on many circumstances over which it has little control. In order to facilitate the realization of the federation’s political goals within the framework of what is constitutionally permissible * * * the constitution confers considerable discretion on foreign affairs agencies in assessing the practicality and feasibility of certain policies or actions.’ The First Senate reached a similar conclusion in the Schleyer Kidnapping Case (1977; no. 7.6). Whether the federation should negotiate for the release of a hostage out of respect for the right to life secured by Article 2(2) of the Basic Law or resort to other actions in dealing with terrorists is a matter wholly within the discretion of the politically responsible organs of government. In mapping the boundaries of the deference it would show to the federation’s political organs, [the German Constitutional Court has] employed language similar to that used by the U.S. Supreme Court in defining the political question doctrine.

See also the discussion of matters textually committed to another branch of government in the Arms Deployment Case (1983). The West German Constitutional Court declined to put the political question doctrine label on this case, but such a label and the same outcome would be put on a similar case arising in the United States. In the Atomic Weapons Deployment Case, 68 BVerfGE1 (1984), the Constitutional Court heard a Green Party challenge to the ongoing U.S. installation of cruise missiles with nuclear warheads on German soil to deter attacks from the former Soviet Union. Professors Kommers and Miller explain on page 195 of their Treatise that the Green Party argued the executive could not allow the U.S. to place these missiles on German soil, inviting a Soviet nuclear response, without a vote on the question in the Bundestag. Kommers and Miller explain that the Court noted “that an executive action, taken in conformity with existing treaty obligations—here the NATO Treaty—requires no new legislation under Article 59(2). The challenged action would have survived constitutional analysis even because it was within the foreign policy discretion of the executive and did not even require authorization by a treaty. The Constitutional Court said that “The Basic Law does not confer on the Parliament any power to initiate foreign policy or to control its administration.” Another classic instance of the German Constitutional Court applying the political question doctrine without saying it is doing so is in cases where Parliament has voted to dissolve itself and call for early elections, with the approval of the president of Germany. The German Basic Law strongly disfavors the dissolving of the Bundestag early for elections because of the abuses of that power in the Weimar Republic, but the president in Germany has nonetheless deferred to political majorities seeking early elections. A powerful argument could be made in

110  the History and growth of Judicial Review, Volume 2 such cases that the Constitutional Court ought not to allow early elections to be held. In two cases now, however, the German Constitutional Court has deferred to the legislature and the president on the calling of early elections, even though the calling of early elections is pretty clearly unconstitutional. This is another example of the political question doctrine being active in the margins of German constitutional law. A recent German Constitutional Court decision, which reviewed the constitutionality of legislation that the U.S. Supreme Court would refuse to judicially review on ripeness and political question grounds came in the Aviation Security Case, BVerfGE 115, 118 (2005). In the wake of the September 11, 2001, terrorist attacks in the United States, where terrorists hijacked planes and crashed them into the World Trade Center in New York City and the Pentagon, the German legislature passed a statute authorizing the German military to shoot down hijacked planes before they hit buildings and caused massive losses of life. A constitutional complaint was brought that: challenges the armed forces’ authorization by the Aviation Security Act to shoot down, by the direct use of armed force, aircraft that are intended to be used as weapons in crimes against human lives. * * * [T]‌he complainants directly challenge the Aviation Security Act because, as they argue, it permits the state to intentionally kill persons who have not become perpetrators but victims of a crime. * * * Article 2.2 sentence 1 of the Basic Law guarantees the right to life as a liberty right * * * With this right, the biological and physical existence of every human being is protected against encroachments by the state from the point in time of its coming into being until the human being’s death, independently of the individual’s circumstances of life and of his or her physical state and state of mind. Every human life as such has the same value * * *

The Constitutional Court held that the challenged provision of § 14.3 of the Aviation Security Act does not live up to these standards, and, as a result, it struck down the Aviation Security Act as being unconstitutional, because it treated the lives of the passengers on the plane as a means and not an end. The opinion is very Kantian. The court certainly did not see the issue at hand in the Aviation Security case as a political question. Should the court have shown the government more deference in emergency situations? In emergency situations, what is more important—​respecting the dignity of people or minimizing loss of lives? Unlike the U.S. Constitution, the German Basic Law explicitly recognizes the value of human dignity. Protection of dignity is embodied in Article I, right at the front of the Basic Law, signifying its primacy as a constitutional value.

The Federal Republic of Germany  111

F.  Balancing Rights and Duties in Germany Professor Donald Kommers notes in an essay, “Germany: Balancing Rights and Duties,” in Interpreting Constitutions: A Comparative Study 161177 that the German Constitutional Court “had disposed of an astounding 149,442 cases [from 1951 to  2005], 96.2% of which were constitutional complaints.”178 He argues that the court has emphasized the “holistic unity of meaning” of the Basic Law and its “self-​contained, internally coherent, system of rules and norms.”179 The court frequently describes the Basic Law as comprehending an “objective order of values,” with human dignity at the top.180 This objective order of values infuses the whole document with its meaning and is “rooted in a Christian personalism” and in Kantianism. The objective order of values is “ordered hierarchically” with human dignity, human life, and the free development of one’s personality being the top three values.181“A right in the German constitutionalist view embraces not only the right to be left alone, free of state interference, but also a claim to assistance in the enjoyment of the right.”182 The German Basic Law differs from the U.S. Constitution in that it is not only a charter of negative liberties against the state, but also a document that applies horizontally, as in Lüth’s Case, to alter the legal relationship between two private parties. The German Constitutional Court plays a more active role than the U.S. Supreme Court in policing federalism and separation of powers boundaries.183 It has developed a Bundestreu doctrine under which both the federal and länd governments must act in ways that promote the spirit of German federalism. The court has been influenced in its interpretation by neo-​Thomist and Kantian perspectives.184 “ ‘The image of man in the Basic Law,’ the FCC has declared ‘is not that of an isolated sovereign individual; rather, the Basic Law has decided in favor of a relationship between individual and community in the sense of a person’s dependence on and commitment to the community, without infringing on a person’s individual value.’ ”185 “The words and phrases of the constitution mean what that say, and the Court takes them seriously.”186 The court occasionally engages in purposive interpretation that draws on historical materials.187 The court “rejects the principle 177 Donald Kommers notes in an essay, Germany: Balancing Rights and Duties, in Interpreting Constitutions: A Comparative Study 161 (Jeffrey Goldsworthy ed., 2006). 178 Kommers, supra note 177, at 175. 179 Id. at 176. 180 Id. at 180. 181 Id at 181. 182 Id. at 184. 183 Id. at 186–​87. 184 Id. at 189. 185 Id. at 190. 186 Id. at 190. 187 Id. at 191.

112  the History and growth of Judicial Review, Volume 2 of stare decisis as such, [but] its opinions, like those of other high courts, are studded with citations to its case law.”188 Decisions of the Constitutional Court are published “in the book of federal statutes known as the Federal Law Gazette, a practice that underscores the FCC’s character as a negative legislator.”189 “The work of academic lawyers carries as much if not more weight in the Basic Law’s interpretation than judicial precedents. The court relies heavily on treatises and commentaries of established legal professionals * * * ”190 “Under the Basic Law, proportionality ranks as a major constitutional principle.”191 This forms a major point of contrast with former U.S. Supreme Court Justice Antonin Scalia’s rejection of balancing tests.192 Lüth’s Case is foundational as a use of proportionality in constitutional review. A statute is proportional in infringing on a basic right only if: (1) the restriction of the right is an appropriate means to a legitimate end, (2) “the means used to limit the right [are] required to achieve the law’s purpose,” and (3) “the burden on the right [is] proportionate to the benefit secured by the law.” 193 Professor Kommers concludes that “the FCC is at the epicenter of Germany’s constitutional democracy. * * * ‘The Basic Law is now virtually identical with its interpretation by the Federal Constitutional Court.’ ”194

III.  What Explains the Origins and Growth of German Judicial Review? The historical lessons drawn from Germany’s experience with the great wrongs of the Holocaust, Nazism, and the Third Reich informed Germans of the need for constitutional protection of fundamental rights. The explanation of the origins and growth of German judicial review is that it is a classic rights from wrongs reaction of the kind described by Alan Dershowitz in his book by that title, Rights from Wrongs: A Secular Theory of the Origin of Rights.195 This is the case even though there was no revolutionary movement on a human scale, as Ackerman would put it, in Nazi Germany prior to Allied troops invading and conquering the country in 1945. Military occupation from 1945 to 1949 led to more revolutionary change in Germany than occurred in India in 1947 and in South Africa in the 1990s. The German Basic Law emerged as Ackerman claims as an elite

188

Id. at 193. Id. at 193. 190 Id. at 193. 191 Id. at 201. 192 See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). 193 Id. at 202. 194 Id. at 212. 195 Dershowitz, supra note 6. 189

The Federal Republic of Germany  113 bargain and not because of the leadership charisma or organizational charisma of anti-​Nazi forces.196 The military invasion and occupation of Germany after the fall of Hitler led to a revolution on a human scale that was arguably more traumatic than those undergone by India and South Africa, although in all three cases searing injustices had been committed and had to be undone. The origins and growth of German judicial review were facilitated by the fact that the Basic Law constituted the Constitutional Court to act as a federalism and separation of powers umpire. It has performed that function from 1949 down to the present day with great deftness and ability. A third cause of the origins of German judicial review is that the German Basic Law sets up a unique and elaborate system of checks and balances between the two houses of a bicameral legislature; between the federal government and the German state governments; between the bureaucracy and cabinet ministers; and between a ceremonial president, who is head of state and a chancellor who is the head of the government. Germany also checks and balances its use of proportional representation to elect the lower house of the national legislature with: (1) a requirement that no confidence votes be constructive, (2) a 5 percent threshold before a minor party can be seated in the legislature, and (3) a rule that the Constitutional Court can ban anti-​constitutional political parties. The net effect of Germany’s elaborate and highly unique system of checks and balances is that it creates the political space for the Constitutional Court to assert itself vigorously, which in fact happens. I think that all of the divisions and limitations of institutional power almost guarantee that the Constitutional Court will find some allies in elected office, no matter how it rules in any particular case. This has caused the power of the German Constitutional Court to grow over time. Finally, German judicial review shows a lot of evidence of borrowing. The Basic Law borrows from the Weimar and other German Constitutions, and it borrows the concept of the Constitutional Court from the federalism-​protecting Czech and Austrian Constitutional Courts set up by Hans Kelsen during the years between World War I  and World War II. Nonetheless, the German Constitutional Court is far more powerful than were Kelsen’s courts, and the German Constitutional Court is thus quite different from its Czech and Austrian antecedents. The German Constitution borrows the idea of a list of enumerated federal, state, and concurrent powers and perhaps also the ideas of checks and balances and of the power of judicial review from the U.S. Constitution,



196

Ackerman, supra note 4, at 19–​21.

114  the History and growth of Judicial Review, Volume 2 the Constitutions of Canada and Australia, the Swiss Constitution, and the Government of India Act, 1935. I should close by saying that the U.S. presidential, separation of powers system works exceptionally well in the United States, but it does not travel well abroad, in part, because other presidential separation of powers regimes do not provide for mid-​term elections, which greatly check presidential power. The German system of checks and balances judicial review does travel well, and I recommend it for all newly emerging constitutional democratic regimes. Just for the record, I see no evidence at all in Germany of a fading hegemonic elite, that was losing power, entrenching itself in the courts as Ran Hirschl argues happens whenever strong systems of judicial review get started. I also see no evidence that the Constitutional Court was originally created in the 1940s as Tom Ginsburg would predict because two coequal political parties as rational actors decided to engage in “insurance and commitment.”197 Maybe, German judicial review has grown in power over time for those reasons, but for the first twenty years of its history, West Germany was completely dominated by one political party:  the Christian Democrats, which party also led the way in drafting the Basic Law. Once again, Ginsburg’s theory is normatively appealing, but it fails to describe as a historical matter how German judicial review got started.



197

Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt Judicial Review?, 30 JLEO 587.

Chapter Four Japan

Japan has the third largest economy in the world, the tenth largest population, and the 28th highest GDP per capita of any nation in the world. It has the third highest population density of any G-​20 nation, and according to the United Nations (UN), it ranks fortieth out of 244 nations in population density. Japan’s population is rapidly shrinking and aging due to extremely low birth rates and strict limits on immigration. First, I will discuss the history and text of the current Constitution of Japan. Second, I will discuss the history of judicial enforcement of the Constitution. And third, and finally, I will see what comparative constitutional law lessons can be drawn from the Japanese experience with judicial review. My understanding of Japan has benefited from a wonderful book, Shigenori Matsui, The Constitution of Japan: A Contextual Analysis, and from two wonderful law review articles written by Professor David S. Law.

I.  History and Constitution The Japanese Constitution went into effect on May 3, 1947, and it sets up a Western-​style liberal, democratic regime based on the sovereignty of We the People of Japan. The Japanese Constitution of 1947 is thus older than the German Basic Law of 1949, and it is older than the Constitution of Italy of 1947. I discuss it in the order I do because the Allied powers held elections in Germany for state office before they were held in Japan, and the German Basic Law is the seminal Civil Law Constitution, while the Japanese and Italian Constitutions are not. The Japanese Constitution is very entrenched and provides explicitly for judicial review. Amendments to the Japanese Constitution can only be initiated by a concurring vote of two-​thirds of both houses of Japan’s legislature, followed by popular ratification of the amendment in a referendum by a majority of all votes cast. This amendment procedure is so onerous that Japan’s current constitution has never been formally amended.1



1

Shigenori Matsui, The Constitution of Japan: A Contextual Analysis 3 (2011).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0005

116  the History and growth of Judicial Review, Volume 2 Japan has two thousand years of recorded history,2 but it was mostly isolated from the outside world until 1853.3 A few sixteenth-​century Christian missionaries left a small following in Japan, but from 1600 until 1853, the country was governed by the Tokugawa Shogunate of the samurai warrior governing class who, alone, had the right to carry swords.4 The Tokugawa Shogunate banned Christianity, forbade travel overseas, and only allowed foreign trade in the port of Nagasaki with the Netherlands and China. Confucianism, with its emphasis on harmony, was the prevailing state religion, although it coexisted with Shintoism, a religion that worshipped nature gods and that was personified by the emperor. Professors Murphy and Tanenhaus explain that: The country’s social system was based on strong family ties and a rigid class structure in which status depended largely on birth. A number of landlords owned huge estates, but fishing and small farms provided occupations for most of the population. When Commodore Perry paid his famous visits in the early 1850’s, more than 30 million of Japan’s 33 million people lived in small towns and villages, and about half the men and more than three-​quarters of the women were illiterate.5

Commodore Perry arrived in the Tokyo harbor with a number of black warships, and threatened to attack Japan unless it opened itself up to trade. The Tokugawa Shogunate feared Commodore Perry’s warships, and so it entered into an unfair treaty that allowed “extraterritoriality to foreigners and denied Japan the power to impose customs duties.”6 The Shogunate sought imperial approval of the treaty, but the emperor refused, thus weakening political support for the Shogunate. The Shogunate sent a commission to travel to many Western countries and report back on what it had learned. In 1868, after the commission’s report, a small political elite committed to modernizing Japan, helped the fifteen-​ year-​old Emperor Meiji overthrow the Tokugawa Shogunate and establish total imperial rule. Thus began a huge transformation in Japanese governance and society known as the Meiji Restoration. The Japanese began by concluding that they needed to adopt a civil law code of governance like the French Code Napoleon to westernize their laws. After some experiment, the Japanese found that they preferred the emerging civil code of the

2 See R.H. P. Morgan & J.G. Caiger, A History of Japan (1997). 3 Walter F. Murphy & Joseph Tanenhaus, Comparative Constitutional Law: Cases and Controversies 35–​40 (1977). 4 R.H.P. Mason & J.G. Caiger, A History of Japan (1997). 5 Murphy & Tanenhaus, supra note 3, at 35. 6 Matsui, supra note 1, at 7.

Japan  117 authoritarian German Empire, and so that became the basis for Japan’s domestic law. “The drafters had to invent new Japanese words for the Western terms of ‘right,’ ‘freedom,’ and ‘liberty.’ The government also had to create the notion of property rights over land in order to introduce a modern tax system.”7 Japan thus became a thoroughly Continental European civil law country, with a basis in Roman law, as hard as that may be to believe. In 1874, there was a call for the creation of a legislature to assist the emperor in governing the country, and Hirohumi Itoh, the leader of the new government, traveled to Europe to consider the various European Constitutions and to determine which one might be most suitable for Japan. He returned having concluded that the autocratic Prussian Constitution of the German Empire was most suitable for Japan, and thus was born the Meiji Constitution of 1889. Under this constitution, which was granted to the Japanese people by the Meiji emperor himself, who was sovereign, the emperor could veto bills passed by the legislature, and also legislate on his own by decree. Japan modernized and westernized itself with remarkable speed, inviting foreign scholars to teach in its universities and sending its own scholars to study overseas. John Henry Wigmore, the future dean of the Northwestern University School of Law, taught law at Keio University in Tokyo from 1889 through 1892. Japan fought and won a war against China from 1894–​1895, thereby acquiring the territories of Korea and Taiwan. Japan then fought and won another war against the Russian Empire in 1904–​1905, thereby acquiring Manchuria, solidifying its control over Korea, and acquiring more northern islands. In 1912, the Meiji emperor died. He was succeeded by his son, the Emperor Yoshihito, who was then succeeded in 1926 by his son, the Emperor Hirohito, who began the Showa era. Professor Matsui reports that “[i]‌n 1918, the Cabinet came to rely on the majority support among the political parties in the Diet for the first time,” and universal male suffrage was introduced in 1925.8 Unfortunately, the army and navy reported only to the emperor, and they were becoming more and more militaristic and adventurous. “After the invasion of Manchuria in 1931 and the assassination of the prime minister, military officers either served as Prime Minister or controlled that office.”9 Japan rapidly became a de facto military dictatorship. It declared war on China in 1937, allied itself with Nazi Germany and Fascist Italy in 1940, and bombed Pearl Harbor in December of 1941, thus going to war with the United States. Japan’s reason for bombing Pearl Harbor was that President Franklin D. Roosevelt had banned the export of all American petroleum products to Japan to protest its war crimes in

7

Id. at 9. Id. at 11. 9 Murphy & Tanenhaus, supra note 3, at 36. 8

118  the History and growth of Judicial Review, Volume 2 Manchuria, China, and Korea. Japan needed to control sea lanes to the Middle East to regain access to oil, and it thought that this could only be done by destroying the U.S. Navy in the Pacific Ocean. Hence, the surprise attack on the U.S. fleet at Pearl Harbor, which had forced Japan to open itself to trade when it had not wanted to do so under Commodore Perry. Japan was completely and utterly defeated in World War II. Even prior to the dropping of atomic bombs on Hiroshima and Nagasaki, most Japanese cities were devastated by firebombs, most of Japan’s merchant ships were sunk and destroyed, its industries were demolished, and it suffered huge civilian casualties. The firebombing of Tokyo alone killed somewhere between eighty-eight thousand and ninety-​seven thousand people with another one hundred thousand wounded. General Douglas MacArthur, who was the Supreme Allied Commander in the Pacific Theater (SCAP), insisted that Japan surrender unconditionally, and it did so. U.S.  troops occupied all of Japan, and General MacArthur arrived in Japan to supervise the occupation. There were no Soviet, British, or French zones in the occupation of Japan, since Japan had been conquered by and was answerable to one country only, the United States of America. General MacArthur, who was by nature “imperious, arrogantly self-​righteous, politically conservative, and piously cunning,” turned himself into a sort of emperor who could tell the Japanese people what to do.10 He democratized Japan, implemented large-​scale land reform, and made the emperor proclaim that he was a living human being and not a god. MacArthur decided to spare Emperor Hirohito from execution, because he was deemed essential in the rebuilding of a democratic Japan. General MacArthur sought to ensure that Japanese militarism would never again pose a threat to the United States, and he sought to transform Japanese culture and institutions to support democratic government. To establish democratic institutions, SCAP insisted that the remnants of the Japanese government draft a new and liberal constitution. When the Japanese produced only a modified version of the Meiji charter, MacArthur’s staff wrote a new draft in eight days. (Speed was urgent, MacArthur believed, because the Russians might soon be participating in governing Japan, and he wished to present them with an operating political system.) Although collaborating and bargaining with the Japanese, SCAP pushed most of its version through the skeletal political process.11 Article 9 of the new constitution forbade Japan from ever maintaining any military forces, and Japan was forced to renounce war as a right of the nation.12 The new constitution took effect on May 3, 1947. 10 Id. at 37. 11 Murphy & Tanenhaus, supra note 3, at 37. 12 See generally Kyoko Inoue, MacArthur’s Japanese Constitution:  A Linguistic and Cultural Study of its Making (1991).

Japan  119 Professor Shigenori Matsui concludes that the Constitution was legitimately adopted because: (1) the Japanese government had been given ample time to produce a draft constitution by General MacArthur and had essentially failed to do so; (2) MacArthur had offered to publish his draft so the Japanese people could comment on it, and the government declined the offer because it feared the draft would be popular, and the government could have lost its bids for re-​ election if it was seen as resisting the draft Constitution; (3) when the draft was published as a government bill, it did in fact receive widespread support from the public; (4) the legislature, which was elected using universal male and female suffrage, reviewed the draft and made substantial revisions to it prior to adopting it by the requisite two-​thirds majority of both houses; and (5) MacArthur offered to let the Japanese government re-​examine the Constitution one year after its adoption, but it declined to do so. “In light of these circumstances, it would be unfair to say that the Constitution was ‘forced on the Japanese people and was thus invalid.’ ”13 It might be added that the emperor gave his approval to the new Constitution, which vested sovereignty in We the People of Japan, and the new Constitution complied with the constitutional amendment rules of the Meiji Constitution, which it replaced. There is a persistent and seemingly eternal myth that the current Constitution of Japan was totally imposed on the Japanese people against their will by U.S. General Douglas MacArthur, who was Supreme Allied Military Commander in Japan when the Constitution was adopted. While General MacArthur did play a role in the constitution-​drafting process, it is wrong to say that he imposed the Constitution on the Japanese people.14 The Japanese government accepted MacArthur’s Constitution because it had and continues to have the strong support of the people of Japan, as Professor David S. Law points out. The Japanese Constitution sets up a liberal constitutional democracy with a parliamentary government; a bicameral legislature called the Diet; and the emperor functioning as a constitutional monarch, along the lines of the British constitutional monarch. The Constitution is based on individualism, in place of the communitarianism that had previously characterized Japanese society. This belief system is in tension with the traditional religious belief system of the Japanese people. As Murphy and Tanenhaus explain: The Confucian ideal of harmony and its stress on obligation are also still vigorous. In traditional society, the focal point of behavioral norms was the group

13 Matsui, supra note 1, at 20–​21. 14 For an excellent discussion, see David S. Law, The Myth of the Imposed Constitution, in Social and Political Foundations of Constitutions 239–​68 (Denis J. Galligan & Mila Versteeg eds., 2013).

120  the History and growth of Judicial Review, Volume 2 rather than the individual. A person’s full realization of self was ‘achieved by freely fulfilling one’s duties to others.’ * * * ‘In a sense it can be said that the basic right of the Japanese is the right not to autonomy, but to belong to a world of loyalties and duties which surrounds, serves, and protects the individual person.’ * * * [Decisions] are group products rather than individual efforts, even by nominal leaders. * * * [Votes are] seldom taken in such institutions as the cabinet, and the Supreme Court is the only tribunal in which dissents are published.15

The Japanese Constitution specifies that the legislative branch, which is called the Diet, shall consist of two houses:  the House of Representatives and the House of Councillors, but it leaves the design of the electoral system to the Diet. The Constitution allows the House of Representatives to override decisions of the House of Councillors by a two-​thirds majority, and the term of office for the House of Representatives is made shorter than the term for the House of Councillors. The membership of the House of Representatives is set at 480 with 300 members who are elected “from single-​member election districts and the remaining 180 are elected by proportional representation.”16 Voters cast two ballots: one for their election district, which is represented by the person receiving the highest number of votes in the district; and a second ballot for a political party, which is allocated on the basis of proportional representation. The membership of the House of Councillors is set at 242 with 146 elected in election districts and the remaining 96 by proportional representation nationwide. Members of the House of Councillors serve for six-​year terms with half of the membership turning over every three years, while members of the House of Representatives serve, at most, a four-​year term. The House of Representatives can be dissolved earlier if the government falls. There is a serious problem with overrepresentation of rural voters compared to urban voters in Japan. The Liberal Democratic Party (LDP) has long called for the adoption of a new Constitution in its platform, but in practice it is a collection of factions that agree on little. The LDP has overwhelmingly dominated Japanese politics since 1947. Other political parties include the Democratic Party of Japan (DPJ), the Social Democratic Party (SDP), and the People’s New Party (PNP). There is not a healthy alternation in power in Japan between mildly right and mildly left political parties or coalitions of parties, as one finds in the United States, the United Kingdom, France, Canada, or Australia. Eighty percent of the public favors retaining the emperor in his current role, according to public opinion polls. The executive power in Japan is vested by the Constitution in a plural executive of the entire Cabinet. There is a prime minister, but he is only a first among

15 16

Murphy & Tanenhaus, supra note 3, at 38. Matsui, supra note 1, at 48.

Japan  121 equals and is traditionally picked by LDP party faction bosses behind the scenes. The Japanese Constitution was meant by General MacArthur to create a British-​ style parliamentary regime, but the electoral law and the gerrymandering of election districts have prevented the emergence of a stable two-​party system. The resulting political system is quite dysfunctional. In particular, Japan has had no success over the last twenty years in addressing a severe deflationary economic crisis. Japan is, in short, a textbook example of the perils of parliamentary government and a plural executive.17 There have been many calls over the last seventy years, especially by conservative forces in Japan, for the writing of a new, less individualistic Constitution, or at least for the repeal of the Article 9 ban on maintaining military forces. It should be noted that notwithstanding Article 9, Japan has established an exceptionally powerful self-​defense force that is now authorized to engage in preemptive wars. It is also the case that Japan allowed the United Sates to station troops in the country even after the post–​World War II occupation came to an end, and U.S. troops are still stationed on the Japanese Island of Okinawa.18 Japan has had only two Constitutions in its history. The first was the Meiji Constitution of 1889, proclaimed by imperial decree. The second is the current 1946 Constitution, which was forced upon the government of Japan by General Douglas MacArthur after World War II, but which has repeatedly been proven to be very popular with the Japanese people, although not with the conservative LDP elite. The current Constitution was drafted with very substantial U.S. input, and it was published and then submitted for ratification by the imperial Diet after the first postwar elections in 1946—​elections in which women were allowed to vote for the first time. Both houses of Parliament approved the new Constitution, following the procedure for constitutional amendment in the Meiji Constitution. The Privy Council and the emperor approved the new Constitution, and it went into effect on May 3, 1947. The Japanese Constitution limits governmental but not private power, forbids Japan from maintaining Armed Forces, and declares that the emperor is not a god and that he is subject to and bound by the Constitution. Japan has a bicameral legislature with an upper house, called the House of Councillors.19 The lower house, which is called the House of Representatives, prevails on budget matters, treaties, and designation of the prime minister, but on other matters it can only override the House of Councillors by a two-​thirds vote.

17 Id. 18 See also Constitutionalism in Asia in the Early Twenty-​First Century (Albert H.Y. Chen ed., 2014); The Japanese Legal System: An Era of Transition (Tom Ginsburg & Harry N. Scheiber eds., 2012); Japanese Constitutional Law (Percy R. Luney Jr. & Kazuyuki Takahashi eds., 1993); Ian Neary, Human Rights in Japan, South Korea, and Taiwan (2002). 19 Senates: Bicameralism in the Contemporary World (Samuel C. Patterson & Anthony Mughan eds., 1999).

122  the History and growth of Judicial Review, Volume 2 Several recent Japanese LDP governments were reined in by this rule after the LDP lost its majority in the House of Councillors. The LDP won a majority in July of 2019, and now has a majority in both houses of the legislature. A two-​thirds majority in both the two houses is required to propose constitutional amendments, but such amendments must be ratified by a majority of the people voting. While the LDP favors amending the Constitution, the people of Japan are very much opposed. Members of the House of Councillors serve a six-​year term, and the House cannot be dissolved. Half the house is elected in special elections held once every three years—​a system that is dissimilar from the elections for the lower house. Elections to the two houses of Parliament are thus staggered and occur at different times, as with the United States and Germany, which is desirable. In Japan, constitutional amendments must be passed by a two-​thirds majority of the House of Councillors—​this fact alone gives the upper House real power. Under Article 96, Chapter IX, the 1946 Japanese Constitution can only be amended by a vote of two-​thirds of the members of both houses of Parliament, called the Diet. Amendments must then be submitted to the people for ratification in a popular referendum, in which an absolute majority of all those voting is required for ratification. This amendment process is quite onerous, and, as a result, the Constitution of Japan has never been amended. On July 21, 2019, former Prime Minister Shinzo Abe’s LDP won a majority in midterm elections for the upper house of the Diet, called the House of Councillors, giving the party majority control of both houses of the Diet. Former Prime Minister Abe was a right-​wing nationalist, and he had called for the writing of a new Constitution for Japan that would have been much less individualistic, and which would have allowed Japan to maintain Armed Forces. Happily, Prime Minister Abe was forced to resign due to a scandal on September 16, 2020. His successor Yoshide Suga, is a close ally of Abe’s, but is in a very weak political situation not having won an election yet on his own and because of charges of misconduct against former Prime Minister Abe. Constitutional change in Japan thus is unlikely, which is a good thing because the 1947 Constitution is a liberal, Enlightenment values document. Prior to his forced resignation, former Prime Minister Abe favored starting the process of constitutional change with an amendment that would make it much easier to amend the Japanese Constitution. Amendments have also been discussed that would restore the emperor to his pre-​1945 status of being above the Constitution and not limited by it, and repeal Japan’s Freedom of Expression clause from the Japanese Bill of Rights. His successor Yoshide Suga, is a close ally of Abe’s, but is in a very weak political situation not having won an election yet on his own and because of charges of misconduct against former Prime Minister Abe. Constitutional change in Japan thus is unlikely, which is a good thing because the 1947 Constitution is a liberal, Enlightenment values document. Japan’s deputy prime minister, Taro Aso, stirred controversy several years ago when he said, “Germany’s Weimar Constitution was changed into the Nazi

Japan  123 Constitution before anyone knew.” Mr. Aso added that the Weimar Constitution “was changed before anyone else noticed. Why don’t we learn from that method?” These remarks, of course, produced a furious reaction both in East Asia and from Holocaust remembrance groups. Prime Minister Abe succeeded before he was forced out of office in acquiring cabinet approval for a greatly watered down “interpretation” of Article 9, by which Japan had foresworn the maintenance of military forces. The whole future of Japan’s liberal Constitution may thus be up for grabs if Japan’s new prime minister so wishes, although a two-​thirds majority of both the House of Councillors and the House of Representatives is needed to propose amendments to the Constitution for popular ratification. The left-​wing parties in Japan oppose constitutional reform. The Japanese public seems to want the government to concentrate on economic reforms, and there is no widespread popular support for rewriting Japan’s Constitution. Opinion polls show that a majority of the Japanese people are opposed to changing the 1947 Constitution. One can only hope that constitutional revision under these circumstances does not happen. The British news magazine The Economist reported in an article on June 1, 2013, that Shinzo Abe, who was then the LDP prime minister of Japan, has made it his life’s work to advocate the writing of a new Constitution for Japan that would eliminate Article 9, impose social obligations on people instead of praising freedom and rights, and elevate the concept of “public order” as a limit on individual freedom. Former Prime Minister Abe was said to want to restore the emperor as the head of state, and even seem to remove the Emperor’s obligation to uphold the constitution. Abe wanted to delete entirely an article in the current document guaranteeing human rights. To a clause on equal rights [for women], the LDP wanted to add a homily on the family, whose members, it says, must help each other.20 Former Japanese Prime Minister Abe resembled the prime minister of India, Narendra Modi; and the prime minister of Israel, Benjamin Netanyahu, all of whom want to scrap Enlightenment constitutions for religious fundamentalist reasons. The commitment of Japan, India, and Israel to Enlightenment values that all human beings are born free and equal in dignity and rights are now being sorely tested in all three countries. Whether anything happens with respect to constitutional reform now that Prime Minister Abe has resigned remains to be seen. Mr. Abe first wanted to lower the threshold required to pass constitutional amendments from a two-​thirds majority of both houses to a simple majority. “If this amendment [had] passed, it would [have made] other articles of Japan’s constitution much easier to revise.”21 In practice, Prime Minister Abe scrapped wholesale constitutional reform prior to his resignation in favor of adopting an understanding of Article 9 that allows for the waging of preventive wars. Public controversy and

20 21

Japan’s Constitution: Back to the Future, Economist (June 1, 2013): 43. Id.

124  the History and growth of Judicial Review, Volume 2 disagreement within the LDP forced Prime Minister Abe to drop wholesale constitutional reform from his agenda. Former Prime Minister Abe is, today, quite unpopular in Japan, and his uncharismatic successor seems unlikely to effectuate major constitutional change. Former Prime Minister Abe’s dreams of repealing the Constitution’s guarantees of freedom of expression and of restoring the emperor as a force above and beyond the Constitution will not be enacted anytime soon.

II.  The Practice of Judicial Review in Japan In “The Anatomy of a Conservative Court: Judicial Review in Japan,”22 Professor David S. Law describes the Supreme Court of Japan as being the most “conservative constitutional court in the world” in that it is “so passive or cautious that it almost never challenges the government.” Professor Law observes that since the court’s creation in 1947, it “has struck down only eight statutes on constitutional grounds. *** By way of comparison, Germany’s constitutional court, which was established several years later, has struck down over 600 laws.”23 Moreover, as Professor Law notes, the Supreme Court’s rulings of unconstitutionality have with one exception concerned unimportant issues in Japanese life. Thus, the court held unconstitutional the creation of the crime of patricide (the murder of one’s father) as an especially heinous crime in a case where a woman who had been repeatedly raped by her father killed him.24 And, in Kabushiki Kaisha Sumiyoshi v.  Governor of Hiroshima Prefecture (Japanese Drug Store Case), Supreme Court 29 Minshu 572 (1972), the court held unconstitutional a law that restricted the ability of two pharmacies to operate in close proximity to one another. The Japanese Supreme Court has also, according to Professor Law, “limited the liability of the postal service for the loss of registered mail; it has struck down a law restricting the ability of co-​owners of forest land to subdivide their property; and it has most recently distinguished for purposes of citizenship eligibility between illegitimate children of Japanese fathers who acknowledge paternity prior to birth and those whose fathers acknowledged paternity only subsequent to birth.”25 I agree with Professor Law that “[t]‌he high point of over fifty years of judicial review in Japan is probably a 1976 decision rejecting a legislative apportionment scheme that weighted the votes of rural voters five times as heavily as those of

22 David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan, 87 Tex. L. Rev. 1545 (2009). 23 Id., at 1547n.5 (2009). 24 Patricide Case, Grand Bench, Supreme Court of Japan, Hanrei, JIHO (No. 697) 3 (May 1, 1973). 25 Law, supra note 22.

Japan  125 urban voters, yet the Court refrained in that case from ordering any remedy.”26 In this case, the Supreme Court held that the 1972 elections had been unconstitutional, but the court declined to dismiss Parliament and call for new elections based on one person, one vote. Instead, the Supreme Court meekly waited for Parliament to abide by its ruling. The malapportionment of districts is less glaring in Japanese law today than it was in 1976, but Professor Matsui says that as of 2011 the Supreme Court will accept a 1 to 3 discrepancy.27 Thus, even on the Brown v. Board of Education analogue case in Japanese constitutional law, the Diet has complied only in part in the ruling of the Supreme Court of Japan. The conservatism and judicial restraint of the Japanese Supreme Court is perhaps most evident in its wildly implausible constructions of Article 9 of the Japanese Constitution, which reads as follows: Article 9.  Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

In Sakata v. Japan, Supreme Court, Grand Bench, 13 Keishu 3225 (1959) (The Sunakawa Case), the Japanese Supreme Court upheld the constitutionality against an Article 9 challenge of the existence of U.S. military airfields in Japan, which were being actively used by the American Armed Forces. The court distinguished between war making, which violated Article 9; and self-​defense by U.S. troops, which did not violate Article 9 according to the court. In 1976, in Minister of Agriculture, Forestry and Fisheries v.  Ito (The Nagamanuma Nike Missile Site Case II), Sapporo High Court, 27 Gyosai reishu 1175 (1976), a Japanese court upheld against an Article 9 challenge the building of a Nike anti-​ aircraft missile base in a Hokkaido forest. The Japanese courts again upheld this, along with generous funding of the military, as self-​defense activity that did not come within the ambit of Article 9. Most recently, Former Prime Minister Abe’s government received an executive branch construction of Article 9 that allows Japan to wage preventive wars as part of its right of self-​defense. The Japanese judiciary, whether rightly or wrongly, has in effect read Article 9 out of the Japanese Constitution.

26 Kurokawa v.  Chiba Prefecture Election Commission, Supreme Court, 30 Minshu 3 223 (Apr. 4, 1976). 27 Matsui, supra note 1, at 52-​53.

126  the History and growth of Judicial Review, Volume 2 The Japanese Supreme Court has reached conservative results on other constitutional issues as well. In The Death Penalty in Japan Case, Grand Bench, Mar. 12, 1948, Hanreishu, II, No. 3, 191 (criminal),28 the Supreme Court upheld the death penalty as being constitutional at the present time. In Kakunaga v.  Sekiguchi, Supreme Court of Japan, Grand Bench, 31 Minshu 4, at p.  533 (1977), the Japanese Supreme Court upheld the constitutionality of a municipal government paying public money to Shinto priests to conduct a religious groundbreaking ceremony at the site at which a public building was being erected. Article 89 of the Constitution of Japan specifically says that: No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority.

It is quite simply impossible to reconcile the court’s holding in the Kakunaga Case with the literal language of Article 89. The Japanese Supreme Court essentially argues that the groundbreaking ceremony was not really religious and was only “ceremonial deism.” This is not a plausible conclusion on the facts of this case. The Japanese Constitution guarantees the right to freedom of expression in more generous language than does the U.S. Constitution. Thus, Article 21 says that: Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

On several occasions, lower-​level Japanese courts have held government acts to violate Article 21, but the Supreme Court of Japan has always reversed those rulings. In seventy years of deciding cases, the Supreme Court of Japan has never once held a law to violate Japan’s equivalent to the U.S. Freedom of Expression clauses. In sum, the Japanese Supreme Court does not enforce those parts of the Constitution, which are liberal like Article 9 on no war making; Article 21 protecting freedom of speech; or Article 89, which forbids taxpayer money from being used to hire Shinto priests. The Supreme Court of Japan is a paragon of Thayerian judicial restraint. It does absolutely nothing but rubber stamp and thus legitimize actions taken by the political branches of the government. 28 Reprinted in English in Walter F. Murphy & Joseph Tanenhaus, Comparative Constitutional Law 429–​31 (1977).

Japan  127 The Supreme Court of Japan is in every meaningful sense the polar opposite of the German Constitutional Court to the extent that those courts can be compared. The Japanese Court is restrained, deferential, and reads texts formally. The German Court is active, questions claims of governmental authority, and is liberal and progressive. The Japanese Supreme Court and the German Constitutional Court are polar opposites. They form a perfect contrast. We turn next to answer the difficult question of why these two courts took such different paths after World War II.

III.  Why Has Judicial Review Failed to Take Root in Japan? Why has judicial review of the constitutionality of legislation failed to take root in Japan? Several scholars have attempted explanations. Some have observed that Japan has a mandatory retirement age for justices of 70, but many countries with lower retirement ages than that nonetheless have thriving systems of judicial review. Professor David Law argued that: [F]‌ormal and informal institutions and practices * * * have stacked the deck heavily against liberal constitutional decision making by the SCJ. These include the education, recruitment, and promotion of Japan’s career judges; the screening and selection of Supreme Court justices; the resource limitations and practical constraints faced by a sitting justice; and the influence of the Chief Justice and select administrators within the judiciary over the behavior of the lower courts and the composition of the SCJ. * * *”29

Professor Law adds that it is really hard for liberals to get appointed to the Supreme Court, and once judges are on that court, it is very hard for them to behave in a liberal way. Professors J.  Mark Ramseyer and Eric B.  Rasmussen offer their own explanation of the Japanese Supreme Court’s behavior in Measuring Judicial Independence: The Political Economy of Judging in Japan.30 Professors Ramseyer and Rasmussen argue that politics influences the judicial behavior of Japanese judges. Using econometric analysis, they show that judges who issue rulings in politically sensitive cases favorable to the ruling party are likelier to enjoy better

29 Law, supra note 14, at 1547. 30 Professor J. Mark Ramseyer & Eric B. Rasmussen offer their own explanation of the Japanese Supreme Court’s behavior in Measuring Judicial Independence: The Political Economy of Judging in Japan (2003).

128  the History and growth of Judicial Review, Volume 2 careers than would be otherwise expected, enjoying more opportunities for advancement and more desirable assignments, while judges who rule against the ruling party are likelier to have their careers hindered by unpleasant career assignments. Does this conclusion comport with Professor Law’s description of the Japanese judiciary? With the two decisions you just read?31 I argued in Volume I of this two book series that judicial review originated in the United States because of the role played by the Privy Council from 1660 to 1776 and because of the need for a federalism umpire between the national government and the states. Judicial review spread wildly in the United States after the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments for rights from wrongs reasons. Judicial review in Germany arose for rights from wrongs reasons after Nazism and the Holocaust and due to a need for a federalism and separation of powers umpire as well as because of a desire for hegemonic entrenchment and for insurance and commitment. I will explain in a subsequent chapter that judicial review in France emerged because of the need for a separation of powers umpire between the separately elected president and Parliament. Japan does not need either a federalism or a separation of powers umpire, since Japan is: (1) a unitary nation-​state with no need for a federalism umpire, and (2) Japan is a parliamentary democracy with a weak upper house of the legislature. This means that to act in a counter-​majoritarian way, the Japanese Supreme Court would have to take on the national prime minister who is backed up by a majority of the nation’s voters in a unitary nation-​state. There can be no navigating between the federal government and the Länder; no navigating between the Bundestag and the Bundesrat; no navigating between the career civil service and government ministers. And, there is no power to make law that is binding erga omnes because Japan is a civil law country with no doctrine of precedent and in need of a Kelsenian Constitutional Court. The Japanese Supreme Court is stuck ruling one case at a time. Even the division of the national legislature into two houses does not help the Supreme Court because the methods of electing the two houses are so similar that one party is likely to control them both. The absence of a federal upper house, like the Bundesrat, representing states or regions, is sorely felt. Moreover, the promotion of appellate judges selection process is less likely to empower extraordinary people, like Dieter Grimm, to be appointed to the Supreme Court. The absence of any meaningful semblance of a two-​party system does not help either.

31 See also The Japanese Legal System: An Era of Transition (Tom Ginsburg & Harry N. Scheiber eds., 2012).

Japan  129 I submit that it is the absence of federalism, meaningful bicameralism; the separation of legislative from executive power; and above all, of a working system of checks and balances, which makes Japan’s constitutional architecture fundamentally different from Germany’s. The German Basic Law divides and allocates power to a number of different gatekeepers, and this opens up the political space in which the German Constitutional Court can assert itself. The U.S. system of checks and balances with power divided among the president, the Senate, and the House of Representatives, as well as between the nation and the states also opens up a political space in which the U.S. Supreme Court can assert itself. The Supreme Court of Japan usually faces a hegemonic Prime Minister like former Prime Minister Shinzo Abe who controls both houses of the legislature; the executive branch and the cabinet; the vast resources of the LDP; and the rural communities, which have no federal status. Supreme Court justices, who have not been elected to lengthy terms by a two-​thirds majority of either one or the other house of the legislature, will inevitably be outgunned in such a system. Japan’s constitution, unlike Germany’s and Israel’s, simply does not leave room for an activist Supreme Court. There is, in addition, a second key difference between Germany and Japan that explains the failure of judicial review in Japan comparatively speaking. We saw in the previous chapter that Nazism and the Holocaust led to a rights from wrongs origin for many of the rights in the German Basic Law and for its system of very active judicial review. Japan committed grave wrongs during World War II, including war crimes such as mass murder and rape, and the use of Korean “comfort women” to be raped systematically by Japanese troops. But, Japan has never atoned for the wrongs it committed nor has it ever truly admitted to even having done the horrible things that Japan did. There was no Nuremberg Trial in Japan: just the hanging of a few top leaders. Even the Emperor Hirohito, who was clearly a war criminal, was not hanged but was allowed to continue to reign until his death from natural causes. A nation cannot get rights from wrongs judicial review, and a Bill of Rights, unless it admits that it has committed wrongs in the first place. Japan has never admitted and confronted its wrongdoing, and so there are no acts of expiation that might have flowed from such an admission. Indeed, top Japanese politicians continue to worship at a Shinto war memorial that celebrates the Japanese military members who fought in World War II. Third, Japanese judicial review and the Constitution of Japan were set up directly by the orders of U.S. General Douglas MacArthur when U.S. troops were occupying and governing Japan. There was no buy-​in from Japanese elites on that country’s constitution-​writing process in the way that there was buy-​in, in West Germany, by German elites. Indeed, the Japanese elites who negotiated with MacArthur were extremely timid. General MacArthur, undoubtedly, was a fading elite hegemonic figure, according to Ran Hirschl’s take on judicial review,

130  the History and growth of Judicial Review, Volume 2 who sought unsuccessfully to entrench liberal, constitutional values in Japan. But, once the heavy U.S. military occupation of Japan came to an end, there was no partially faded, hegemonic Japanese elite group that was interested in continuing General MacArthur’s project. The Japanese people like General MacArthur’s Constitution, and the Constitution can only be repealed by a two-​thirds vote of both houses followed by 51  percent approval in a national referendum. This prevents the Japanese elites who hate MacArthur’s Constitution from being able to get rid of it. But, it is not enough to get Japanese elites to support the vigorous use of judicial review to implement General MacArthur’s Constitution. As a result, Japan is caught in a standoff between its people, who like the current Constitution; and the Japanese elites who want to write a new Constitution. The net effect of this standoff is that there is no meaningful judicial review in Japan at the present time. I should note in closing that there were never two evenly matched parties of Japanese elites who sought MacArthur’s Constitution out of a desire for “insurance and commitment” in case the ruling LDP lost power. That party has been in power almost continually in Japan from the end of World War II until the present day in 2020. As a result, the LDP sees little reason to “insure and commit” to rights in the extremely unlikely event it would ever lose power. None of the various factors that led to the emergence of vigorous judicial review in Germany have ever been present in Japan. Under the ranking of regime types by Professor Ackerman in Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law32 into:  (1) revolutionary movements led by charismatic leaders using an organization with its own charisma, (2) elite constructions, and (3) evolutionary constitutionalisms, Japan is obviously an elite construction regime largely arrived at by General Douglas McArthur. A few observations may flow from this. To the extent the Japanese elite, like former Prime Minister Abe and the Supreme Court, feel that the Japanese Constitution was imposed by outsiders, they may resent it and not enforce it. Second, General McArthur may have done a poor job of writing a liberal, democratic constitution because he did not put in place all the checks and balances that German constitution writers adopted for themselves, including federalism and a meaningful system of separation of powers. Third, in trying to get the Japanese to borrow judicial review from the United States, McArthur ran into the same kinds of problems that affected the French when they tried to borrow jury trial from the English or Latin Americans when they tried to borrow presidentialism from the United States. 32 Bruce Ackerman, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law (2019).

Japan  131 Borrowing often fails in comparative constitutional law, and Japan’s failure to successfully borrow judicial review from the United States is merely a spectacular instance. Japan is a civil law nation like Germany, and it might have done far better with a Constitutional Court picked half by a two-​thirds vote of the lower house of the Diet and half by a two-​thirds vote of the upper house of the Diet. Needless to say, General McArthur had probably never heard of Hans Kelsen and so the effort at borrowing was botched up. The same thing happened in the nineteenth century when the civil law nations of Latin America tried to borrow the U.S. system of judicial review. Latin American borrowing of U.S. judicial review was a flop until very recently. Only after 1988, when Latin American leaders began conferring on their Supreme Courts the powers of a Constitutional Court, did judicial review begin to become a force to be reckoned with in Latin America. Civil law countries like Japan and the countries of Latin America need a Kelsenian Constitutional Court in order for judicial review to work.

Chapter Five

The Republic of Italy If you want to go on a pilgrimage to the birthplace of our Constitution, go to the mountains where the Partisans died, go to the prisons where they were jailed, go to the fields where they were hung. Wherever an Italian died to redeem freedom and dignity, you should travel there with your mind, young souls, because it is there that our Constitution was born.1

Italy has 60.8 million inhabitants, and it has the ninth-​largest economy by GDP in the world. Italy ranks sixty-​first out of 244 nations, according to the United Nations (UN), in population density. It ranks 33rd in the world in GDP per capita according to the IMF. Italy also has a rich and colorful history beginning with the ancient Etruscans and Romans, and continuing up through the Renaissance, which was born in Italy, and on to the present day. The Republic of Venice, for example, was a major military and cultural force in the north of Italy for over one thousand years.2 It played a key role in keeping the Ottoman Turks from conquering Christian Europe. Moreover, the city-​state of Florence gave birth to the Italian Renaissance, which influenced all of Europe. Many Italian natives have had a powerful impact on the world since the Middle Ages including: Marco Polo; Dante; Christopher Columbus; Michelangelo; Leonardo da Vinci; and Galileo, who helped give birth to modern science. Italy ranks seventy-​second in the size of its territory and sixty-​third in the world in the size of its population. Italy’s influence in the world today is primarily due to its rich cultural heritage and to its membership in the top ten countries in the world by total GDP.3 Italy now has a rigid Constitution, which is enforced by a very active Constitutional Court. Its case law is much

1 Piero Calamandrei, La Costituzione e la gioventù: Discorso pronunciato da Piero Calamandrei nel gennaio 1955 a Milano 8 (1975). 2 William H. McNeill, Venice: The Hinge of Europe, 1081–​1797 (1974). 3 The leading English language books on Italian constitutional law are the following: Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, & Andrea Simoncini, Italian Constitutional Justice in Global Context (2016); Valerio Onida et al., Constitutional Law in Italy (2013).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0006

134  the History and growth of Judicial Review, Volume 2 more like Germany’s, and unlike Japan’s, at least with respect to the level of judicial activism practiced by the Italian Constitutional Court. The Italian nation-​state is a comparatively new development dating back only to 1861. Italy, like Germany, thus only recently became a nation-​state. Daniel Ziblatt argues that federalism thrived in Germany and failed in Italy because the German states had more developed bureaucracies than did the Italian states.4 I have my own explanation for this federalism difference, which I will argue for below. It can definitely be said that Italian nationalism, anti-​feudalism, and liberalism were all post–​French Revolutionary impulses. The French Revolution was, itself, both quite nationalistic, and very liberal, because it was opposed to the power of the feudal French nobility, who ruled in the provinces independently from central control. One of the first acts of the French Revolutionaries in March 1790 was to abolish the forty traditional provinces of France and the twenty-​two traditional regions and to chop them up into more than ninety centrally controlled departments. French Revolutionary liberalism was thus quite nationalistic, as the Napoleonic Empire would prove. A similar combination of liberalism and of nationalism was also at work in the unifications of Germany and Italy in the nineteenth century. It was really only after the horrors of World Wars I and II, and of the Holocaust, that European liberals and socialists abandoned nationalism and put their faith in trans-​European institutions, federal regimes, and human rights guarantees. All of us are still hoping that the nightmares of Donald Trump, and of Brexit, are an aberration and that we can get back to the neo-liberal collective security; free trade; and support for democracy principles, which I will always associate with Ronald Reagan and Margaret Thatcher. Nationalism is a frightening force when it is unleashed, but liberals played with Nationalism a lot in the 19th Century. Other parts of pre-​Independence Italy included the Kingdom of the Two Sicilies, which was comprised of the island of Sicily and much of Southern Italy, from Naples to the south. This kingdom was closely linked to the Spanish Crown and was rural and undeveloped. In Central Italy, there was a large Papal State centered in Rome, which was under the direct rule of the pope. This state discriminated against Italy’s small Jewish community by locking them into walled-​off ghettoes at night. The French Emperor Napoleon abolished the Jewish ghettoes when he conquered the Papal State. Much of Northern Italy, including Milan, was under the control of the Austro-​Hungarian Empire until the unification of Italy. The only native Italian state in the north in the nineteenth century was the

4 See generally Daniel Ziblatt, Structuring the State:  The Formation of Italy and Germany and the Puzzle of Federalism (2006) (addressing the odd fact that feudal regions in Germany coalesced into a federal structure, while in Italy they coalesced into a unitary national structure).

The Republic of Italy  135 Kingdom of Sardinia and Piedmont, which occupied the island of Sardinia and the Piedmont area, which is the borderland between present-​day Italy and France. As we shall see, Italian judicial review and the Italian Constitution’s Bill of Rights is best explained as being, first, an example of the rights from wrongs phenomenon, described by Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origin of Rights.5 A second cause of the emergence of strong judicial review in Italy is a result of a constitution, which creates a meaningful system of checks and balances. This leaves the Italian Constitutional Court with the political space to play an important role in the life of the country. Our understanding of Italian constitutionalism has been greatly enriched by Vittoria Barsotti, Paolo G. Caroza, Marta Cartabia, and Andrea Simoncini, Italian Constitutional Justice in Global Context; and by Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law.6

I. History A.  Italian Constitutionalism before 1848 The traditional view, which is held by Dieter Grimm, is that Italy’s first experience with constitutional governance came after the French Revolution when Napoleon’s armies spread the French Revolutionary Constitution to Italy.7 Matteo Godi and I have written a law review article, which has been published in the Italian Law Journal, which challenges this traditional view.8 Matteo Godi and I observe that written constitutionalism, itself, is a relatively recent phenomenon. It arguably began with the writing of the great European codes, including the Code Napoleon, and it found its first full form in the U.S. Constitution, ratified in 1788. As it turns out, there were many attempts at constitution writing in Italy before the writing of the flexible Statuto Albertino, in 1848, that are not widely known in the English-​speaking world. Some of these early Italian constitutions were based on natural law, which might very well have trumped positive statutory texts in court. Three of the most striking examples, out of over fifty early Italian modern constitutions, include: (1) a Draft Constitution of Tuscany (1787); (2) the Second Constitution of the Cisalpine Republic (1798); and (3) the Constitution of the 5 Alan Dershowitz, Right from Wrongs: A Secular Theory of the Origin of Rights (2005). 6 Vittoria Barsotti, Paolo G. Caroza, Marta Cartabia, and Andrea Simoncini, Italian Constitutional Justice in Global Context; and Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019). 7 Dieter Grimm, Constitutionalism: Past, Present, and Future 58 (2016). 8 Steven Gow Calabresi & Matteo Godi, Italian Constitutionalism and Its Origins, 6 ITALIAN L. J 23 (2020).

136  the History and growth of Judicial Review, Volume 2 Kingdom of Italy (1802). Carlo Ghisalberti argues that “even before the writings of Montesquieu and Rousseau,” there were present “[i]‌n Italy the seeds of a revolutionary philosophy and [of] the new European public law.”9 According to Ghisalberti, Italian legal thought recognized early on the contrast between positive law and natural law, and the subordination of the former to the latter.10 Ghisalberti first focuses on the works of Gian Vincenzo Gravina (1664–​ 1718), who he identifies as the father of the Italian legal enlightenment. In his De Imperio et Iurisdictione, Gravina spoke of the foundation of sovereignty in rational rather than purely contractual terms, and he outlined the need for a separation of powers in which law is formulated by a legislative body and impartially applied by judges.11 Ghisalberti then looks at Domenico Bandini’s Il Governante Politico Cristiano, published in 1699. There, Bandini laid out the foundations for the eighteenth-​century theories of the state, “a juridical and political organization of society in which the progress and the well-​being of the citizens are the fulcrum of the legislative, administrative, and jurisdictional activity *** of the State.”12 Isidoro Bianchi refused to “honor with the sacred name of law those constitutions that do not have any relationship with the natural laws and the laws of enlightened reason.”13 And, Giuseppe Maria Galanti lamented that “few have been the governments that have respected the rights of humankind.”14 The Italian legal Enlightenment movement saw the law as a powerful tool to reform the status quo. The role of legislation was exalted. The building blocks of constitutionalism thus already existed in Italy, even before the ideas of the French Revolution crossed the Alps. As early as 1779, the Grand Duchy of Tuscany moved to codify its laws, and Leopold II entrusted his prime minister, Francesco Maria Gianni, with the drafting of a new constitution for Tuscany. This Draft Constitution, although it was never put into effect, was completed in 1782. It reflects early Italian constitutional thought and was divided in three sections: a Preamble, a Constitution, and Consecutive Ordinances. Thus, once the French Revolution began, Italy was fertile ground for its democratic and constitutional ideals. Italian legal thinkers, who had been writing about the possibility of reform for decades, dramatically shifted toward making open criticisms of the contemporary legislators. Italy embarked on an intellectual revolution of its own, with an eye on the prize: constitutionalism.

9

Carlo Ghisalberti, Le Costituzioni “Giacobine” (1796–​1798) 31 (1957). Id. at 38. 11 Id. at 30. 12 Id. at 33. 13 Id. at 39. 14 Id. 10

The Republic of Italy  137 In 1790, at a time when France was still a monarchy, Pietro Verri explicitly asked for a constitution, during an assembly in Lombardy with local delegates and with the Emperor Leopold II.15 The following year, Nicola Spedalieri, a Catholic priest, published a book, The Human Rights, stressing the importance of popular sovereignty and the role of the church as a safeguard to the social contract.16 The book was not well received by monarchists.17 Verri’s and Spedalieri’s hopes died young, and the only solution left for Italy was following France’s revolutionary path. The influence of the French Revolution did help put these newborn ideas into motion. The three French constitutions of 1791, 1793, and 1795 reached Italy even before the Napoleonic invasions. The French Directory translated them into Italian and they were clandestinely brought across the Alps.18 Eventually, in 1796, Napoleon invaded Northern Italy. The first experiment with modern Italian constitutionalism emerged as a result of the occupation of Emilia Romagna. The Framers of the new Italian constitutions described their efforts as being part of a centuries-​long fight against the power of the church.19 In July 1796, the Republic of Bologna established a constituent assembly, which over the following months produced a constitution. Though democratic in nature, and after the model of the 1795 French Constitution, the 1796 Constitution of Bologna was only municipal in its aspirations. But, over the following two years, Bologna joined other cities in Emilia Romagna to form the Cispadan Republic. When the Austrians were defeated and Lombardy had been conquered, Napoleon formally transferred sovereignty back to the people and established the Cisalpine Republic. The 1796 Constitution of the Cisalpine Republic, while in small parts modeled after the Constitution of Bologna, was an entirely new document—​the product of a new constituent assembly, strongly inspired by the 1795 French Constitution.20 Two years later, the Constitution of the Cisalpine Republic was amended. Italians thus experimented with the idea of natural law and arguably even with rigid constitutionalism in the eighteenth and early nineteenth centuries. Italy’s sense of nationhood did develop further during the Napoleonic occupation of Italy, when the country was briefly a kingdom under the governance of France, and of Napoleon’s brother-​in-​law.



15

Carlo Morandi, Idee e formazioni politiche in Lombardia dal 1748 al 1814 172 (1927). Nicola Spedalieri, The Human Rights (1791). 17 Ghisalberti, supra note 9, at 76. 18 Id. at 90. 19 Id. at 106. 20 Id. at 110. 16

138  the History and growth of Judicial Review, Volume 2

B.  Italian Unification and the Statuto Albertino King Charles Albert of Piedmont-​Savoy responded to the Revolutions of 1848, which swept through all of Italy like a big wave, by granting to his people a written constitution with no bill of rights and no judicial review. This Constitution became known as the Statuto Albertino, and it was the Constitution of all of Italy until 1947. The Statuto Albertino was a “flexible constitution,” which meant that it could be altered by Parliament by a simple majority vote. As a result, judicial review of the constitutionality of legislation was impossible under the Statuto Albertino because all legislation was presumptively constitutional. Thus, from 1848 to 1947, Italy did not have judicial review of legislation. The Italians did not hate their judges to the degree that the French did because Italian judges were not the mere tools of absolute monarchs like King Louis XIV. At the same time, Italy, like France, was a civil law country in which judges were supposed to take a back seat to codifiers and scholars. As Ackerman says, “No less than the French, Italian judges condemned [judicial review of the constitutionality of statutes] as fundamentally illegitimate.”21 This was reflected by the fact that ordinary legislation could amend the Statuto Albertino. The nation of Italy, itself, was only created in the modern era between 1859, when Lombardy was annexed to the Kingdom of Piedmont; and 1860, when the territories of Central Italy joined Piedmont by plebiscite. Giuseppe Garibaldi led the Kingdom of the Two Sicilies in all of Southern Italy to join Piedmont at the same time. A war in 1866 led to the acquisition of Venice and the Veneto, and in 1870 Rome and the Papal State were conquered by the new Italian nation-​state. The Papal State was confined to the Vatican City, and it did not recognize the legitimacy of the nation-​state of Italy until Mussolini negotiated a treaty with the Vatican in the 1920s. The acquisition by the Kingdom of Piedmont of all of Italy, and the application of Piedmont’s laws to the whole of the new nation explains how a state born from the unification of many different territories and states, each with its own traditions and institutions, managed to become a centralized unitary state with total uniformity as to legislations and administration. It must be remembered that, although the regions annexed to the new Italian nation-​state had very different political and historical backgrounds, they had never experienced self-​government, and they had no bureaucratic subunits, unlike the states of federal Germany. The new Italian nation-​state, therefore, never had to face opposition arising from experiences in self-​government that predated unification.22 It also differed from Germany, which formed as a nation-​state, 21 Ackerman, supra note 6, at 131. 22 Onida et al., supra note 3, at 25 (2013). (Reproduced with permission of Fabrizio D’addabbo, Antonio D’andrea, and Giovanni Guiglia.)

The Republic of Italy  139 at about the same time, in that all of Italy was Catholic, whereas some of the German states were Protestant, while others were Catholic. In part, as a result, federalism flourished in Germany, but it died out in Italy until very recently. The unification of Italy was completed between 1861 and 1870, and the country has had four governing regimes since that time. The first Italian regime existed from 1861 until the rise to power of the Fascist Dictator Benito Mussolini, in 1922. Italy was a classical liberal regime during this period of time. It had a constitutional monarch, who governed with a two-​house Parliament, the upper house of which was appointed by the king. “In practice, a sort of English-​ style parliamentary government was established from the outset. The office of prime minister was held by a deputy who enjoyed a parliamentary majority and exercised the political leadership of the executive.”23 In 1870, only 2 percent of the population had the right to vote, but by 1919, universal suffrage was granted to men only.24 The second Italian regime existed from 1922 to 1943 during which time Italy was a Fascist dictatorship under Benito Mussolini. From 1943 to 1945, Italy was a German puppet state. The third Italian regime began on June 2, 1946, when Italians voted to abolish their monarchy and to become a republic. A constitutional assembly was then elected, which wrote the Italian Constitution. This First Republic, which used an extreme system of proportional representation, lasted until the early 1990s. The fourth and final Italian regime began in 1993 when Italy changed its electoral law to move dramatically away from proportional representation. This led to the emergence of a bipolar center-​right and center-​left coalition party system, which has been able successfully to alternate in power. This regime could be called a Second Republic because it functions so differently from the First Republic, which existed from 1946 until 1993.25

C.  Fascism and the Resistance In 1922, the Fascist Dictator Benito Mussolini attempted a coup, which failed. The king of Italy, however, was so intimidated that he invited Mussolini to form a government as prime minister. This development, which was accompanied by the growth all over Italy of violent Fascist gangs of thugs, led to the Fascist dictatorship of 1922 to 1943. The Italian Constitution, the Statuto Albertino, was of no



23

Id. Id. at 27. 25 James L. Newall, The Politics of Italy (2010). 24

140  the History and growth of Judicial Review, Volume 2 help against Mussolini because it was very flexible and amendable and was thus easily overridden. “In 1923, the so-​called Acerbo Law * * * [was adopted, which] provided that the party obtaining the most votes in an election would be allocated two-​thirds of the seats [in Parliament], as long as it obtained 25 per cent of the total vote.”26 In the election of 1924, Mussolini benefited from this law and won a two-​thirds majority in Parliament. He governed continuously as a Fascist dictator until he was overthrown in 1943. As Professor Bruce Ackerman explains, King Victor Emanuel could see “the handwriting on the wall” by July 1943, so he dismissed Mussolini, as prime minister; and installed Field Marshal Badoglio, who was a Fascist general in his place.27 Badglio reassured the Nazis that Italy would stay on their side in World War II, while simultaneously opening negotiations with the Allies. The Germans learned of this betrayal, and they took direct control over the Italian government themselves.28 The king and his government fled to Allied controlled territory to save their lives. The guerilla fighters of the Resistance movement created “grassroots revolutionary governments in key areas and finally succeeded in seizing and killing Mussolini during the closing days of the war,” as Ackerman recounts.29 The Allies won control of Northern Italy with help from “the Italian Partisans Liberation Committee.”30 The Communist Party, the Socialist Party, and the Christian Democratic Party all emerged from helping the Resistance with what Ackerman calls “organizational charisma.” Italy is thus a country, which Professor Ackerman says has followed a revolutionary path to nation formation and to constitution writing like India, South Africa, and France under the Fourth Republic. Italy faced greater challenges than did India and South Africa because in those countries. there was only one revolutionary organization with charisma: the Indian National Congress Party and the African National Congress Party. In Italy, three revolutionary parties emerged from the resistance to claim power: the Communist Party, the Socialist Party, and the Christian Democratic Party. Fortunately, these three parties were able to set aside their differences and to write a Constitution, which is now more than seventy years old. Italy was spared the difficulty the French Fourth Republic faced from General Charles de Gaulle.



26

Id. at 19. Ackerman, supra note 6, at 133. Id. at 134. 29 Id. 30 Id. 27

28

The Republic of Italy  141 Palmiro Togliatti, the head of the Communist Party, made a critical decision in 1945 not to try to start a Marxist revolution, but to instead join what Ackerman calls a government of national unity with the Socialists and the Christian Democrats under the king.31 This put Togliatti in a coalition with the Christian Democrat’s leader, Alcide De Gasperi. De Gaspari was in his sixties and had charismatic appeal for leading the Christian Democrats during their years in the wilderness under Mussolini.32 De Gasperi faced the difficult task of winning over Catholics who had supported Mussolini because of his having entered into the Lateran Accords of 1929, which had normalized relations between the Italian government and the pope.33 Allied troops greeted the provisional government of the Christian Democrats, the Socialists, and the Communists under the king with approval. They thus chose to give De Gasperi, who was the head of this government, a lot of leeway, as Ackerman says, on what to do next.34 De Gasperi was not supervised in constitution writing as closely as were the West Germans or the Japanese. The king, recognizing his unpopularity, abdicated in favor of his son Umberto II in the hopes Italy would retain its monarchy. Umberto II then called for the election of a constituent assembly in June 1944, and the provisional government called for a referendum the same day on whether to abolish the monarchy. In the end, Italians voted 54 percent to 46 percent in favor of abolishing the monarchy. “Voters also swept the Communist/​Socialist/​Christian Democrat coalition into a commanding position” in the new constitutional assembly.35 The turnout was 90 percent so the referendum hugely legitimated the role the three-​party coalition was playing in Italian politics.

D.  Adopting the Constitution On June 2, 1946, Italians voted to abolish the monarchy because of the king’s role in Mussolini’s rise to power, and a constituent assembly was elected. For the first time in Italian history, women were allowed to vote as well as men.36 As Professor Bruce Ackerman points out, the lesson that Italian voters had learned from Fascism and from their experience with the king naming Mussolini to be prime minister was “the tragic blunder that the new Constitution should avoid at all costs.”37 Italians wanted a rigid Constitution in place of the flexible

31

Id. at 134–​35. Id. at 138–​39. 33 Id. at 139. 34 Id. at 140. 35 Id. at 141. 36 Onida et al., supra note 3, at 29. 37 Ackerman, supra note 6, at 141. 32

142  the History and growth of Judicial Review, Volume 2 Statuto Albertino. They also wanted to decentralize power. As a result, they created a powerful Senate to protect them from the Chamber of Deputies. De Gasperi also wanted a powerful Constitutional Court, and he got one.38 To get such a court, De Gasperi was willing to let the Communists and the Socialists write a social welfare state bill of rights into the Constitution and not merely a classical liberal bill of rights. As Ackerman explains, the left was willing to make this deal but no one wanted Parliament to pick all the Constitutional Court justices for fear it might pick just hacks. At the same time, no one wanted to give power to sitting Fascist judges. Ackerman explains that the three governing parties compromised by having Parliament pick five judges, the president pick another five judges, and the ordinary courts would pick the five final judges.39 Italian Constitutional Court judges hold office for a nonrenewable nine-​year term. Implementing legislation provided that Parliament’s five judges would need to be elected by supermajorities, and that the prime minister and the cabinet could not tell the president who his five judges had to be. The president of Italy is elected for seven years by both houses of Parliament meeting in joint session. Legislation establishing the Constitutional Court, and the process of appointing all fifteen of the justices took seven years to accomplish. The Italian Constitutional Court first heard cases in 1955. The new rigid Constitution, which is difficult to amend, went into effect in 1948, and it remains the Constitution of Italy down to the present day. An electoral law was passed that provided for extreme proportional representation, with the result that Italy developed a huge multiparty system and very weak coalition governments. Between 1945 and 1992, there were over fifty governments—​an average of more than one government a year.40 This discredited the government in the eyes of the public, especially because prime ministers were typically weak figures who were picked and controlled by shadowy party bosses. During this period of time, the two largest parties—​the Christian Democratic Party and the Communist Party—​regularly took between them as much as 64  percent of the total vote for Parliament. Because of the cold war between NATO, which Italy joined; and the former Soviet Union, an ironclad presumption emerged that the large Italian Communist Party could never help to form the government. This meant that all Italian governments in the postwar period had to include the Christian Democrats and some collection of smaller parties. As a result, Italy had no moderate right and moderate left coalitions, which could alternate in power as occurs in the United States, the United Kingdom,

38

Id. at 142. Id. at 144. 40 Onida et al., supra note 3, at 26. 39

The Republic of Italy  143 Germany, and France. Lack of alternation in power led the governing parties to become corrupt, and eventually the whole system came crashing down. By the end of 1993, 251 members of Parliament, four former prime ministers, five ex-​ party leaders, and seven former cabinet members were under investigation for corruption. This scandal, together with the fall of the Berlin Wall, led to a complete restructuring of the Italian political party system. The Christian Democratic Party, which had governed Italy for half a century, completely disappeared from the scene. This was the result of the rising wealth, education, and social and geographic mobility of Italian voters. The need for the Christian Democratic Party had always been the public’s fear of a Communist Party government during the Cold War. The end of the Cold War in 1989 meant that the Christian Democrats, who by then were enmeshed in scandals, could be dispensed with. At the same time, the Communist Party, which had always been somewhat moderate, renamed itself the Democratic Party of the Left, while a small breakaway Leninist group formed a Refounded Communist Party. The Democratic Party of the Left could be, and was, trusted to participate in Italian governments. Formerly Christian Democratic voters divided their votes among the Northern League, a regionalist, federalist party in the north of Italy; Silvio Berlusconi’s Forza Italia; and a moderated Neo-​Fascist Party in the south of Italy. A new electoral law designed to mitigate the evils of proportional representation was approved on April 18, 1993, in a referendum in which the turnout was 77 percent of the electorate. The reform passed with 83 percent of the public voting for it. Under this reform, three-​quarters of the seats in Parliament were allocated “on the basis of the single-​member, simple plurality (first-​past-​the-​ post) system,”41 which is used in the United States and in the United Kingdom. The remaining one-​quarter of the seats were allocated by proportional representation, with a 4 percent threshold to keep minor parties out of Parliament. This new electoral law succeeded in creating a bipolar system, with a moderate right party coalition and a moderate left party coalition that alternated in power.42 In March 1993, reformers changed the local election process as well. Proportional representation was replaced by a double ballot, and if no candidate got a majority in a local election district, the two strongest candidates would compete in a runoff election.46 Unfortunately, Silvio Berlusconi, who has been the bane of modern Italy’s existence, changed the electoral law yet again in December 2005 to revert back to a system of proportional representation, with a bonus number of seats for the party coalition with the highest plurality, so as to guarantee it majority control of

41 42

Id. at 33. Id.

144  the History and growth of Judicial Review, Volume 2 the lower house. Berlusconi made this change for purely selfish reasons, because without it he would have been voted out of power. The Italian Constitutional Court held in 2013 that the 2005 electoral law was unconstitutional because it resulted in a government that did not reflect the wishes of the citizens, since it gave the coalition of parties that won the most votes an automatic majority. This is a foolish decision that could be construed to mandate the form of strict proportional representation that Italy struggled under until the reform of the 1990s. In 2013, the folly of the 2005 electoral law became apparent when the general elections of that year led to Democratic Party control of the lower chamber but not of the Senate. The prime minister who emerged, Matteo Renzi, made constitutional and electoral reform his top priority. Renzi proposed reforms that would have greatly reduced the power of the Senate by eliminating its ability to pass votes of “no confidence” in the government. The Senate would have also lost its power to block laws. Renzi also called for a new electoral law. Renzi’s constitutional reform was adopted by the lower house of Parliament on May 4, 2015, and was presented to Italian voters in 2016, but it was rejected, and Renzi resigned as prime minister. Italy thus remains committed to fully coequal bicameralism. The current Italian electoral law, adopted in 2017, allocates 37% of the seats using a first-past-the-post system and the remainder by proportional representation. The 1948 Constitution that the Constitutional Court enforces is “the first to have been voted on by a representative, directly elected body,” because the Statuto Albertino of pre-​Fascist Italy was simply a royal decree.43 The Constitution is rigid and entrenched, and it includes a detailed Bill of Rights. A number of important provisions of the Italian Constitution only came into effect after 1948 because implementing legislation for these constitutional provisions took years and even decades for Parliament to pass. Thus, the Constitutional Court did not go into effect until 1955, and the constitutional framework for the regions was not put in place until 1968.

E.  Bicameralism and the Italian Senate One of the unique features of the Italian Constitution is that it sets up two fully coequal houses of the legislature: the Senate and the Chamber of Deputies. Most G-​20 constitutional democracies other than the United States and the Federal Republic of Germany do not give so much power to the upper houses of their legislatures. Because the same electoral law applies to both houses, a party that 43 See Carlo Fusaro, Italy, in How Constitutions Change: A Comparative Study 211, 211 (Dawn Oliver & Carlo Fusaro eds., 2011).

The Republic of Italy  145 wins a majority in the Chamber of Deputies almost always wins a majority in the Senate as well. A recent effort to amend the Italian Constitution to drastically shrink the powers of the Senate was rejected by Italian voters in a referendum. The Italian Senate consists of 315 elected members and a few other senators appointed by the president of the republic for life. “The two parliamentary chambers [in Italy are] co-​equal in legislative powers and in their role in approving the appointments of prime minister and cabinet ministers***.”44 The Italian Senate’s complete coequality with the Chamber of Deputies, or lower house, makes it unusual among bicameral regimes around the world today. “The constitution mandates that the government must obtain a vote of confidence from both Chamber and Senate,”45 and it requires that both houses approve identical texts of the budget and laws for such documents to be legally effective. International treaties and declarations of war also require the action of both houses.46 Since 1963, senators have served the same five-​year terms as members of the Chamber of Deputies. Moreover, the electoral systems for both houses are so similar that they are almost always controlled by the same political coalitions. Presently, there is a coalition government of two populist, Euro-​skeptic political parties: the Five Star Alliance and a new version of the Northern League. Giuseppe Conte, an Italian law professor and politician is the current prime minister of Italy. Conte has a much better reputation than do the two anti-​immigrant political parties that put him in office. The Italian Senate existed under the monarchy, where it was meant to be a body that would encourage moderation and stability along the lines of the House of Lords. The Senate resisted Mussolini’s dictatorship in the 1920s. The Italian Communist Party opposed bicameralism in Italy in 1947, but all other parties embraced it, and so it came to be enacted into law.

F.  Regionalism in Italy The Republic of Italy only became a nation-​state in the 1860s, shortly before the unification of Germany. Like Germany, Italy has many regions with their own cultural, historic, and linguistic dialects, but unlike Germany, the post–​World War II Constitution of Italy essentially created a unified nation-​state. Although the Italian Constitution provided for the creation of regional governments, the Italian Parliament did not pass a law to accomplish this until 1970. For the

44 Senates: Bicameralism in the Contemporary World 225 (Samuel C. Patterson & Anthony Mughan eds., 1999). 45 Id. at 247. 46 Id. at 248.

146  the History and growth of Judicial Review, Volume 2 first forty years after World War II and the adoption of the Italian Constitution, there was little political interest in or support for the devolution of power to the regions. This situation changed dramatically in 1991 with formation of the Northern League political party, which advocated—​as the central plank in its party platform—​the creation of federalism, including fiscal federalism. This party is currently part of the governing coalition in Italy, along with the Five Star movement. Some more extreme members of the Northern League have even called for the secession of the Vento/​Po Valley area from the Republic of Italy, to form a separate nation-​state. The political impetus for the Northern League’s modest electoral success in the north of Italy is the complaint that the north of Italy is being very heavily taxed to subsidize the south of Italy, as well as frustration over the excessive centralization of Italy, which is evident in the Constitution. Title V of the current Constitution of Italy regulates and, to a very limited extent, empowers regional and municipal governments in Articles 114 through 133. Italy has expanded the power of the regions, provinces, and municipalities in response to pressure from the Northern League and other Italian advocates of decentralization, but the Constitutional Court in Italy has been hostile to this effort, whereas the Constitutional Court in Germany has been very sympathetic. At this point, we must note that German state officials sitting in the Bundesrat elect half of Germany’s sixteen Constitutional Court judges, whereas the Italian regions play no role in picking members of the Italian Constitutional Court. This probably explains why the German Constitutional Court is more enthusiastic about federalism than is the Italian Constitutional Court. Italy has a total of twenty regions, such as Tuscany, Lombardy, the Veneto, and Emiglia-​Romana. These twenty regions are recognized by the EU. It must be mentioned, in this regard, that just as the rise of the EU may have fueled desires for devolution, federalism, or independence in Scotland, Catalonia, the Basque Region, Corsica, Flanders, and Wallonia, so too has the rise of the EU led some Northern Italians to re-​contemplate their union with the rest of Italy. There is a division among regions with ordinary statutes, and those with special status that are autonomous. In addition, there is special treatment of and protection for minority language speakers, including especially those living in Trentino-​Alto Adige who speak German or Ladin, those living in the Valle D’Aosta who speak French, and those living in Friuli-​Venezia Giulia who speak Slovene.47 The regions of Italy have as legendary and long a history as do the regions of Germany. Italy has Venice, Lombardy, Piedmont, Tuscany, Emilia-​Romana, Rome, Naples, Sardinia, and Sicily. Germany has had Bavaria, Berlin, Hanover, 47 Marta Cartabia, Key Rights Enshrined in the Constitution, in Onida et  al., supra note 3, at 309–​13.

The Republic of Italy  147 Saxony, Prussia, Hamburg, and Baden. Both Italy and Germany were defeated in World War II, and Germany’s state boundary lines were redrawn by Allied troops. Why then is Germany in 2020 a very federal regime, while Italy is for all practical purposes a unitary nation-​state? In my opinion, the reason is that German federalism reflects not only regional, historical, and wealth differences, but also a religious split between Protestants and Catholics. Both Germany and Italy are overwhelmingly secular in 2020, but the fact that Italy was all nominally Catholic whereas Germany was not, at the end of the Thirty Years War, was decisive after 1945 when the new countries’ constitutions were drawn up. Of course, the U.K. and France were also pushing West Germany to set up a federal state, whereas Italy faced no such pressure. The thirteen United States had to be a federal regime, in 1789, because some states had established the Congregational Church while others had established the Episcopal Church. Canada and Switzerland have always been federal because they are part Protestant and part Catholic. France emerged as a unitary nation state because, in 1685, King Louis XIV revoked the Edict of Nantes and banned all Protestants from living in France. The Latin American democracies of Brazil and Mexico, like India, have federal structures, but their state governments are very weak. Why? Because uniform Catholicism in Latin America and Hinduism in India leads to a unitary nation state. What can we learn from this? I submit that one thing we can learn is that for the European Union to really get off the ground its Council of Ministers needs to be replaced by a Senate, and real bicameralism makes a presidential regime, like the U.S. regime, essential. The EU is so decentralized and fragmented that the Linzian nightmare about presidentialism is far less likely than the failed state paralysis produced by pure proportional representation. The Constitution of Italy allows regions to form their own regional constitutions, to elect regional parliaments, and to hold regional referenda, so long as nothing is done that is unconstitutional or contrary to validly enacted Italian laws. The regional Parliament elects a government, which is headed by a regional president.48 The Italian Constitutional Court has special jurisdiction to hear disputes between the state and the regional powers.49 I conclude by quoting language from Article 118, which I think is very relevant to my analysis of federalism in this chapter more generally. 118.Administrative functions are attributed to the Municipalities, unless they are attributed to the Provinces, Metropolitan Cities and Regions or to the State,



48 49

M. Pedrazza Gorlero & M. Nicolini, in Onida et al., supra note 3, at 64–​69. Marilisa D’Amico, The Constitutional Court, in Onida et al., supra note 3, at 216.

148  the History and growth of Judicial Review, Volume 2 pursuant to the principles of subsidiarity, differentiation and proportionality, to ensure their uniform implementation.

Municipalities, Provinces, and Metropolitan Cities carry out administrative functions of their own as well as the functions assigned to them by state or by regional legislation, according to their respective competences. As a matter of formal constitutional law, Italy is as committed to the idea of subsidiarity, as are the European Union, France, and Germany, but the Italian Constitutional Court sometimes seems to disagree. Whether Italy is, itself, truly following the subsidiarity principal is a question that only Italians are in the best position to answer. In the Region of Sardinia Sovereignty Case, Constitutional Case No. 365/​2007, the Italian Constitutional Court came out on the side of broad, possibly limitless, national power.

G.  The Constitutional Amendment Process The process for amending the Italian Constitution is complex.50 The republican form of the Constitution cannot be changed by amendment, and the Constitutional Court has asserted that it has the power to review the constitutionality of constitutional amendments.51 It is not clear if a constitutional amendment that abolished one of the two chambers of the legislature or which switched Italy to a presidential or more fully federal constitutional system would be deemed to be constitutional.52 Part I of the Constitution is a Bill of Rights and of social entitlements; Part II concerns the organization of the government. The Italian Constitution has been formally amended fourteen times as of 2010.53 Most amendments have passed with two-​thirds majorities in both chambers of the legislature. The Constitution has also changed in informal ways, as implementing acts or landmark statutes have been adopted over the years, and due to changes in the electoral system.54 There is now direct election by majoritarian voting of mayors, presidents of the provinces, and presidents of the regions. European integration has also changed Italian constitutional law, due to Italy’s ratification of various EU treaties. A major source of informal constitutional change has come from the decisions of the Constitutional Court itself interpreting open-​ended language in the text of the Constitution.55 Article II, for example, provides that “The Republic

50

Fusaro, supra note 43, at 214. Id. at 214–​15. 52 Id. at 216. 53 Id. at 218. 54 Id. at 221–​22. 55 Id. at 223. 51

The Republic of Italy  149 recognizes and guarantees the inviolable rights of man, both as an individual and as a member of the social groups in which one’s personality affirms itself.”56 From this text, the Constitutional Court has protected “the right to sexual freedom, the right to have a home, the right to privacy, the right to emigrate, the right to one’s own identity, the right to one’s name, the right to marry, [and] the right to one’s reputation.”57 Other constitutional clauses have also been interpreted expansively, and there is a “rich jurisprudence concerning State-​Region relations.”58 The court has benefited in exercising its creativity from the low esteem that the general public has for the political party system.59 Few complain about a gouvernement des juges given the alternative. All in all, the Italian Constitution has been a success in that it has endured for sixty-​five years, and now appears to have a bipolar moderate left coalition that can safely alternate in power with a moderate right coalition. Recent constitutional trends have been to move away, overall, from proportional representation and toward a more truly federal system.

II.  Constitution and Case Law The Constitutional Court of Italy, like the president of Italy, does not exercise either legislative, executive, or judicial power. It is instead set up as a Kelsenian Constitutional Court to defend the Constitution as a fourth branch of the government.60 The court has the power to review the constitutionality of laws or acts having the force of law, as well as the power to umpire disputes among and between the various organs of the national government and the regions.61 It also must pass on the admissibility of referenda aimed at repealing national laws.62 The Constitutional Court consists of fifteen judges, of whom five are appointed by the president of the republic, five are elected by the two houses of Parliament in joint session, and five are elected by the members of the ordinary and administrative law courts. The judges are picked from among ordinary court judges, professors of law, and lawyers who have been in practice for at least twenty years.63 Constitutional Court judges serve a relatively short nine-​ year term and are not eligible for immediate reappointment.64 Dissenting and

56

Id. at 224 n.36 Id. at 224. 58 Id. 59 Id. at 227. 60 D’Amico, supra note 49, at 207. 61 Id. 62 Id. 63 Id. 64 Id. at 208. 57

150  the History and growth of Judicial Review, Volume 2 concurring opinions are not allowed, as is the case on the French Constitutional Council.65 Vote totals on the fifteen-​member Italian Constitutional Court are also not released, so there is no way to know if the Court was unanimous or divided eight to seven on any given case. The opinion of the Court is a communally composed document. Decisions of unconstitutionality have an erga omnes effect.66

A.  The Constitution and Bill of Rights The Constitutional Court has protected first-​generation classical liberal rights, such as the right to personal liberty, freedom of residence, freedom of expression and of religion, procedural constitutional rights, and the right to formal equality. It has also protected second-​generation positive social entitlements like the right to education, health and healthcare rights of workers, and the right to social security and assistance.67 Among the first-​generation liberties to receive special protection from the court are the inviolability of the personal domicile, broadly defined to include workplaces and cars, freedom of movement, and residence in any part of the country,68 freedom of emigration, freedom of assembly, freedom of communication, freedom of association, freedom of expression, freedom of the arts and sciences, and protection of the family.69 The Italian Constitution does not follow the German Basic Law in banning anti-​regime parties.70 The rights of linguistic minorities are protected as well.71 The Constitution of Italy also protects “[a]‌ll the *** second-​generation constitutional rights typical of contemporary social democracies * * *.”72 Among the rights protected are healthcare (Article 32); education (Article 33); work; and social security and welfare when unemployed (Article 38).73 “The 1948 Constitution of the Republic of Italy is the first to have been voted on by a representative, directly elected body (Assemblea costituente).”74 The 1948 Constitution is rigid and entrenched following the post-​1945 pattern in constitution writing.

65

Id. Id. at 213. 67 Cartabia, supra note 47, at 288. 68 Id. at 290–​91 69 Id. at 291–​302. 70 Id. at 295. 71 Id. at 309–​12. 72 Id. at 288–​308. 73 Id. 74 Fusaro, supra note 43, at 211. 66

The Republic of Italy  151

B.  Foundational Judicial Review Case The Italian Constitutional Court’s most important opinion of all time was Constitutional Court Decision No. 1/​1956: On the Constitutional Court’s Power of Judicial Review. The case arose because the Italian Constitution was ratified by the people of Italy in 1948, and a question arose as to whether the Constitution and Bill of Rights applied only to laws enacted after 1948 or whether it also applied to pre-​1948 Fascist-​era laws that were still in the statutory codes. In a landmark opinion, the Italian Constitutional Court held that the Constitution applied to the pre-​1948 Fascist-​era laws, as well as to modern laws. The court then went on to held unconstitutional a Fascist-​era law, Article 113 of the Unified Code of public security laws, which made it a crime to distribute notices or fliers on public streets, or put up pamphlets or newspapers, or use loudspeakers for public announcements, without authorization from public security, or even notwithstanding a prohibition from said authorities. The Italian Constitutional Court spent most of its time between 1956 and 1970 scrubbing the Italian Codes clean of all Fascist-​era legislation. The decision in this case is the Marbury v. Madison of Italian constitutional law. The Italian Constitutional Court said the following in its opinion in this case about its power to review the constitutionality of pre-​1948 laws: The claim that the new institution of “constitutional illegitimacy” only applies to laws passed after the Constitution and not to pre-​existing ones cannot be accepted. * * * On the textual side * * * article 134 of the Constitution * * * discusses questions of constitutional illegitimacy of laws, without making any distinction. * * * On the logical side, it is undeniable that the relationship between ordinary laws and constitutional laws, and the position occupied by each in the hierarchy of authority, does not change with regards to whether the ordinary laws are anterior or posterior to the constitutional ones. As much in the first case as in the second, the constitutional law—​for its intrinsic nature in the system with a rigid Constitution—​must prevail over the ordinary law.75

Once the Italian Constitutional Court concluded that it did have jurisdiction to consider the constitutionality of pre-​1948 laws, the court went on to analyze the constitutional question raised by this case. The Constitutional Court examined the provisions of Article 113, and declared it unconstitutional due to the lack of limits imposed on police power in restricting freedom of speech.76 Accordingly, the Italian Constitutional Court affirmed its jurisdiction to hear

75 76

Barsotti et al., supra note 3. Id.

152  the History and growth of Judicial Review, Volume 2 challenges to pre-​1948 laws, and it struck down as unconstitutional the law in question. As Professor Bruce Ackerman explains, the Constitutional Court in this case not only struck down the Fascist “law authorizing police censorship”: the court also “issued a sweeping rejection of the trivializing interpretation of social rights advanced by ordinary courts during the previous eight years.”77 The “Court put the political branches on notice that it was determined to serve as the ultimate guardian of the revolutionary Republic’s Founding principles now that the struggle against Mussolini was receding into history.”78 Moreover, as Ackerman points out, the Italian Constitutional Court judgment in this case rejected, as the German Constitutional Court had by then already done, the whole idea that judges in the civil law tradition should always be passive and restrained. The Italian and German Constitutional Courts, working side by side, were writing a whole new chapter in the history of the civil law tradition. As the EU gained power, the Lisbon Treaty created a Charter of Fundamental Rights, which would be enforced by the European Court of Justice. Professor Dieter Grimm notes that the Constitutional Courts of Germany, Denmark, France, Greece, Ireland, Italy, and Spain have all asserted power to enforce their national constitutions and Bills of Rights notwithstanding rulings from the European Court of Justice.79

C.  Bill of Rights Case Law In 1975, the Italian Constitutional Court issued a landmark opinion in the Italian Abortion Case, Constitutional Case No. 27/​1975. In that case, legal proceedings were being taken against a woman, Minella Carmosina, and others for having procured an abortion in violation of Article 54 of the penal code. Under that article, abortion was only available if grave damage to a woman’s health was inevitable and imminent. The ordinary court hearing Carmosina’s case stayed the case and certified to the Italian Constitutional Court the question of whether Article 54 of the penal code was constitutional as applied. The Italian Constitutional Court said that the Constitution protects conceived fetal life, but that this right can collide with the right of a woman to have her health completely protected. The Constitutional Court invalidated Article 54 of the penal code saying that it gave too little weight to a woman’s health interests in obtaining an abortion. The legal proceedings against Carmosina and others were

77

Ackerman, supra note 6, at 154. Id. 79 Grimm, supra note 7, at 284. 78

The Republic of Italy  153 stopped. The Italian abortion decision is very short and, in effect, asks the legislature to take a second look at an old criminal law that might be out of date. The Italian abortion decision was not like its United States and German counterparts, both of which contain majority opinions that legislate from the bench in minute detail. Strikingly, the Italian decision was uncontroversial whereas the United States and German decisions were highly controversial. Judgment 27/​1975 held unconstitutional an article of the Italian penal code, which punished women who have abortions.80 In response, Parliament passed a new national abortion law, which permitted abortions during the first ninety days of pregnancy, subject to a seven-​day waiting period, and with parental or judicial consent needed for minors. Both pro-​life and pro-​choice groups sought a national referendum over whether to allow the new compromise law to go into effect. In 1978, the referendum was held, and voters approved the law. The Constitutional Court then upheld the constitutionality of Italy’s new criminal abortion law in 1981. In 1987, the Constitutional Court rejected an effort by pro-​ life groups to call a new referendum. One cannot help thinking that the Italian Constitutional Court handled this issue with much more competence than did either the U.S. Supreme Court or the German Constitutional Court. The Italian Constitutional Court displayed similar wisdom in applying Article 13 of the Italian Constitution, which establishes the inviolability of the person and which subjects restraints on liberty to judicial control. In Judgment 238/​1996, the court struck down portions of the Criminal Code, which gave investigating judges the power to impose a compulsory blood test on an indicted person and also on certain third parties. The Constitutional Court ruled that the Criminal Code violated Article 13 of the Italian Constitution by giving judges overly broad discretion and uncontrolled power. Article 3 of the Italian Constitution gives “All citizens *** equal social dignity and [makes them] equal before the law, without distinctions of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove these obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development and the effective participation of all workers in the political, economic and social organization of the country.” In the Italian Gender Equality Case, Constitutional Case No. 163/​1993, the case was brought by a woman who was excluded from the job of officer in the firefighting service because she did not meet a minimum height requirement of five feet, five inches tall. The woman in question argued that the minimum height



80

Barsotti et al., supra note 3, at 123.

154  the History and growth of Judicial Review, Volume 2 requirement had a disparate impact on women and that it was not necessary to be tall to perform the job of an officer in the firefighting service. No evidence of discriminatory intent other than the disparate impact on women of the height requirement was mentioned in the case. The Italian Constitutional Court held that the minimum height requirement for firefighting officers did violate Article 3’s ban on sex discrimination and was therefore unconstitutional. The court found no justification present that would warrant upholding the law. This case shows that the Italian Constitutional Court reads Article 3 as requiring real and not merely formal equality. In contrast to the U.S. Supreme Court’s decision in Washington v. Davis, 426 US 229 (1976), which required evidence of discriminatory “intent” for violations of the Fourteenth Amendment’s Equal Protection Clause in the United States, the Italian Constitutional Court applied an aggressive form of disparate impact analysis. The Italian opinion is highly progressive in contrast to the U.S. opinion on this issue. One issue as to which the Italian Constitutional Court is more conservative than is the German Constitutional Court or the U.S. Supreme Court is with respect to displays of crucifixes in public school classrooms. Germany and the United States do not allow such displays whereas Italy does. Italy recently took a classroom crucifix case to a Grand Chamber of the European Court of Human Rights (Application No. 3081/​06). That court ruled in Italy’s favor, relying heavily on its margin of appreciation doctrine. This is one area in which Italian constitutional law is less progressive than is German or American constitutional law. This concludes my brief introduction to the case law of the Italian Constitutional Court. Whether one agrees or not with the court’s holding in the particular cases I have discussed, I think it is self-​evident that a vigorous form of judicial review has taken root in Italy since World War II and that the Constitutional Court has grown in power over time. The Italian Constitutional Court is much more powerful than is the Supreme Court of Japan. This may be in part because the political powers, which might oppose the court, are divided into two separate and coequal branches of the bicameral national legislature; and because executive power is further divided between the prime minister and the president of Italy, who has some real power; and, finally, because power is de facto divided in Italy between the regions and the national government even if that division is not really recognized de jure. There are also separate courts of cassation and a council of state, which divides power even more. The Italian Constitutional Court is not as powerful, and has not issued as many landmark opinions, as has the German Constitutional Court. I think this is due mainly to the fact that there is no standing to file citizen complaints; and there are fewer institutions that can file constitutional complaints in Italy as

The Republic of Italy  155 compared to Germany. Most cases reach the Italian Constitutional Court only if they have been referred to that court by the ordinary Italian courts. This puts a real brake on what the Italian Constitutional Court can do. In addition, the Italian Constitutional Court can issue only unanimous, unsigned opinions. In contrast, German Constitutional Court judges can issue dissenting opinion, which reveal how the justices voted in a case. I think all of these factors put together help to explain why the Italian Constitutional Court is much more powerful than the Supreme Court of Japan and much less powerful than the German Constitutional Court.

III.  What Explains the Origins and Growth of Judicial Review in Italy? Professor Dieter Grimm explains the origins of Italian constitutionalism in the following observation: “It needed the experience of twentieth-​century dictatorship with its disdain for human rights to overcome the old reservations [about judicial review] and open the doors for constitutional adjudication. Germany and Italy established constitutional courts in their postwar constitutions. Spain and Portugal followed after their respective revolutions.” I  agree totally with Professor Grimm and think that the Italian Constitution and its system of judicial review are best explained by Alan Dershowitz’s rights from wrongs hypothesis.81 Judicial umpiring of federalism and separation of powers cases in Italy is a negligible feature of Italian judicial review. The best single explanation for the Italian Bill of Rights and for Italian judicial review is the rights from wrongs thesis. This is evident in the Italian Constitutional Court’s first case in which it overturned an Italian Fascist law prohibiting the distribution of political pamphlets. I also think that judicial review has thrived in Italy because, unlike Japan, the Italian Constitution sets up a variety of different competing power centers among which the Constitutional Court can navigate to get its way. Power is divided between the two houses of the legislature; between the prime minister and the president, whose powers are more than ceremonial; between the career civil service and the politicians who head up the ministries; between the nation and the regions; and between the voters who can vote in some referenda but not all the time. Even the court system is divided among the Court of Cassation, the Council of State, and the Constitutional Court. The Constitutional Court of Italy does not face one all-​powerful prime minister backed up by the Parliament of a unitary nation-​state. Instead, the Constitutional Court of Italy can navigate its 81 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005).

156  the History and growth of Judicial Review, Volume 2 way among the many checking and balancing institutions, which the Constitution of Italy creates. Did judicial review emerge in Italy in part, as Ran Hirschl would predict, as the result of a founding revolutionary hegemonic elite trying to entrench its values in the Constitution? No. Hirschl’s theory is quite simply wrong in positing that a fading hegemonic elite in 1947 was entrenching its values. In fact, the Italian hegemonic elite which entrenched its values was a rising power, which has now governed successfully for more than seventy years. It may be the case that the complex Italian party systems in the last sixty years may have lead parties to favor constitutionalizing rights as an effort at “insurance and commitment,” as Tom Ginsburg and Mary L. Volcansek would predict.82 Although, post–​World War II Italy was dominated for decades by the Christian Democratic Party, as also happened in Germany, the Italian governing coalitions were notoriously unstable, and it is only recently that Italy has seemed to move toward a two-​party coalition system. Professor Ackerman argues that Italian democracy emerged after World War II as the result of a sustained popular mobilization during the resistance against Fascism. I agree. Italy is a case where three “charismatic opposition parties” were able to win power and to entrench their values in a judicially enforced, revolutionary Constitution. Italy is thus like India and South Africa, in this respect, as Professor Ackerman argues. The Constitutional Court has used its power to scrub Italy’s various codes free of Fascist-​era legislation.

82 Mary L. Volcansek, Bargaining Constitutional Design in Italy:  Judicial Review as Political Experience, 33 W. Euro. Pol. 280–​96 (2010).

Chapter Six

The Republic of France France ranks twenty-​fifth in the world in GDP per capita, which is well behind the United States (10), Germany (17), Australia (19), and Canada (20) among the G-​ 20 nations. Nevertheless, late eighteenth-​century France and Italy were hotbeds of Enlightenment thinking, which had a huge effect on such American emissaries to Paris as Benjamin Franklin, Thomas Jefferson, and John Adams. All of these men were profoundly changed by their exposure to French Enlightenment thought, and they brought French Enlightenment ideas home with them to the United States and put them to good use. French culture has for 250 years had a profound effect on the entire world. The French Revolution of 1789 happened shortly after the American Constitution went into effect. Americans like Thomas Jefferson and James Madison were thrilled by the French Revolution, which they hoped would spread American principals of government “of the people, by the people, and for the people” all over the earth. Other Americans like Alexander Hamilton and John Adams were horrified by the French Reign of Terror in which fifty thousand people were executed, and they regarded the French Revolution roughly the way Americans during the Cold War thought of the Soviet Union. France had an exceedingly difficult path to democracy, to constitutionalism, and to obtaining the benefits of judicial review. Although the French revolutionaries drafted a democratic Constitution, France fell to a dictatorship under the Emperor Napoleon I. As I will discuss, it was not until 1870 that France became a democracy, and its constitutions from 1875 to 1958 were, in my judgment, fatally flawed. It is only after the adoption of the 1958 Constitution, and many critical amendments to that Constitution, that France truly obtained a good Constitution. The Constitution of France in 2020 creates a meaningful system of checks and balances like the German Basic Law of 1949 and the Italian Constitution of 1947. I will begin with French history and will then turn to its 1958 Constitution and the case law that has grown up under it. As always, I follow in the footsteps of Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law.1 1 Bruce Ackerman, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law (2019).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0007

158  the History and growth of Judicial Review, Volume 2

I. History Modern French history has its origins in the sixteenth century, when France fought a bitter civil war between French Protestants and Catholics. The war was won by the Protestant King Henry IV, who converted to Catholicism to win over the people of Paris. Henry IV was a very good king and the first monarch of the House of Bourbon. He ruled France from 1589 until his assassination by a Catholic extremist in 1610. The French colony of Quebec in North America was founded in 1608, during Henry IV’s reign. The French Parliament, which was called the Estates General, met intermittently during Henry IV’s reign and until 1614. After that, it was not again called into session until 1789.

A.  From Absolute Monarchy to the Reign of Terror Henry IV was succeeded as king by his son Louis XIII, who relied heavily on Cardinal Richelieu to manage affairs of state; and then by his grandson Louis XIV, who ruled from 1643 to 1715—​the longest reign ever of any European monarch. King Louis XIV was a follower of Jean Bodin, who believed in the Divine Right of Kings. His political philosophy was summed up in the phrase “L’Etat C’est Moi”—​I am the State. Louis waged relentless war against Protestant Holland without success. In 1785, Louis XIV revoked the Edict of Nantes, issued by Henry IV, to establish religious liberty in France, and he expelled the French Protestants (who were called Huguenots) from France. The Huguenots fled to Germany, Holland, Switzerland, and the United States where they were highly valued as talented and skilled craftsman whose expulsion crippled France economically. I think the long-term consequences of the expulsion of the Huguenots from France are still evident in the totalitarian extremism of French politics, attitudes toward freedom of religion, and on constitutional law. Just as the expulsion of the Jews from Spain crippled the culture of that country, the expulsion of the Huguenots had the same effect on France. It is hard to know how many Huguenots or Catholics there were in France at any given time, but estimates are that in King Henry IV’s reign there may have been as many as 2 million. King Louis XIV claimed to have expelled about 900,000 Huguenots, in 1785, France, but some historians put the number at closer to 400,000. To put these numbers and this event in Global context, it is worth noting that when King Ferdinand and Queen Isabella expelled around 200,000 Spanish Jews, in 1492, the wise Sultan Bajazet, in Istanbul, is reported to have asked Spanish Jews who were moving into Istanbul: “How can you call Ferdinand of Aragon a wise king when he has so impoverished his impoverished his own land and so enriched ours.” Both expulsions ended up being very bad for the intellectual and cultural life of Spain and France. Under Queen Anne, the British defeated Louis XIV at Blenheim (1704),

The Republic of France  159 Ramillies (1706, Oudenarde (1708), and Malplaquet (1709). Protestant Britain dominated the world in the 18th Century replacing France as Europe’s leading power. Louis XIV was succeeded by his great grandson Louis XV, who was in turn succeeded by Louis XVI. Severe financial troubles, partly caused by French expenses due to its participation in the American Revolution, led Louis XVI to call the Estates General into session in 1789 in the hopes of raising taxes. The third estate of commoners promptly abolished the other two estates, representing the clergy and the aristocracy, and the third estate renamed itself the National Assembly. Thus was launched the French Revolution. During the summer of 1789, the French revolutionaries adopted a Declaration of the Rights of Man and of the Citizen, 1789, which remains as part of the French Bill of Rights down to the present day. The French Revolutionary Declaration of the Rights of Man and of the Citizen, 1789, largely borrows from the state declarations of rights, issued by Virginia, Massachusetts, Pennsylvania, and other North American states, between 1776 and 1787. Benjamin Franklin and Thomas Jefferson had these American state Declarations of Rights translated into French in the hopes of spreading American law into Europe. They succeeded. In fact, the person who wrote the French Declaration was none other than the Marquis de Lafayette who had fought in the American Revolutionary War and who was a key aide to and friend of George Washington.2 It is fair to say that the French “borrowed” their bill of rights largely from the American state Declarations of Rights enacted between 1776 and 1787. In the fall of 1789, the French Revolution took a fateful wrongful turn that transformed it from what Ackerman calls a revolution on a human scale into a totalitarian revolution. The French revolutionaries imprisoned the royal family in Paris in October 1789 and eventually executed Louis XVI and his wife. A vicious reign of terror then claimed the lives of fifty thousand people, most of whom were sent to the guillotine. One revolutionary dictator succeeded another, creating a lawless environment in which permanent constitutional lawmaking could not succeed because there did not exist a rule of law, which is a necessary precondition for constitutionalization and judicial review to come into being. The French Revolution did produce a short-​lived French Constitution, but this Constitution disappeared almost as soon as it was written in the face of the totalitarian rule of one after another of the French revolutionaries. Dieter Grimm puts the French Revolutionary Constitution on a par with the U.S. Constitution, but I disagree with him because the French Revolutionary Constitution collapsed immediately and had only a limited intellectual impact. In contrast, the U.S.

2 Georg Jellinek, The Declaration of the Rights of Man and of the Citizen (A Contribution to Modern Constitutional History) translated from German by Max Farrand. Professor Grimm discusses this subject in infra note 3, at 75–​77.

160  the History and growth of Judicial Review, Volume 2 Constitution of 1789 remains in effect today, and it is Americans today who defend Germany and Eastern Europe from invasion by Russia and Japan and East Asia from invasion by China. Germany and Japan today lack even the political will to survive and raise up a military presence. Moreover, Grimm’s account overlooks the fact that when Latin America became independent of Spain and Portugal, in the early nineteenth century, Latin Americans borrowed the U.S. Constitution, as a model, and not the French Revolutionary Constitution. I do agree with Dieter Grimm that whereas the Americans had only to gain independence from Great Britain, France faced the much higher hurdle of establishing a bourgeois constitution and abolishing feudalism.3 This social, as well as constitutional democratic, reform turned out to be a very tall order to fulfill. It is therefore perhaps unsurprising that the French Revolution ultimately collapsed. The United States’ experience with the collapse of a feudal order was the American Civil War, which claimed more casualties than any other war in American history. Eventually, a conservative Thermidorian reaction to the French Revolution set in, and France was governed under a directory and then under the dictator Napoleon Bonaparte who proclaimed himself the emperor of the French. During his tenure as emperor of France, Napoleon sold the Louisiana Territory to the United States for $11,250,000. In 1815, Napoleon was finally defeated by the British and the Prussians, and he was driven into exile in prison on the island of St. Helena off the coast of South Africa. So why did the French Revolution fail, unlike the American Revolution, and why did it produce absolute rule by the revolutionaries during the reign of terror ending in a Napoleonic dictatorship? I think part of the answer goes back to the one man, absolute rule of France under King Louis XIV and to his fateful decision in 1685 to expel the four hundred thousand French Protestant Huguenots. From 1643 to 1789, France was ruled by absolute monarchs, and the French Parliament was not called into session. During this time, England was a constitutional monarchy, but France was an absolute monarchy. This created an entirely different political culture in France from the culture of limited, constitutional monarchy, which the English were able to create after the Glorious Revolution of 1688. It was also a very different political culture from the one that existed in the German Holy Roman Empire where many Protestant and Catholic states coexisted. King Louis XIV created a political culture in France of absolute rule by one man with one, and only one state religion. The French revolutionaries simply followed Louis XIV’s bad example in believing in the rule of one man unchecked and unbalanced by a constitution.



3

Dieter Grimm, Constitutionalism: Past, Present, and Future 6–​9 (2016); see also  53–​59.

The Republic of France  161 This totalitarian culture led successively to the one man rule of the Emperor Napoleon; to absolutist claims of power after 1815 by the restored French monarchs; to the one man rule of the Emperor Napoleon III; and, eventually, to the one man rule of the Fifth Republic by Charles de Gaulle and his plebiscitary majorities in referenda between 1958 and 1969. French political culture down to the present day has a totalitarian side to it that is reflected, for example, in the ban on the wearing of burkas and head scarves by French Muslims. There is quite simply not the deep-​rooted commitment to limited, constitutional government in France that has existed in England since 1688 and in the United States since 1789 nor is there the commitment to religious liberty that exists in Germany. The expulsion of the Hugueonots has had a very harmful long-​term impact on French society.

B.  From 1815 to 1851: Failure to Democratize After Napoleon’s final defeat by the British and the Prussians at the Battle of Waterloo and his exile to the island of St. Helena off the coast of South Africa in 1815, the Congress of Vienna restored Louis XVIII, the brother of Louis XVI, to the French throne. In 1824, Charles X, another brother of Louis XVI, became king after the death of Louis XVIII. Charles X, who also believed in the Divine Right of Kings to rule, was overthrown in the July Revolution of 1830. The French people replaced him with King Louis Philippe, who they hoped would govern as only a constitutional monarch. These hopes, however, were dashed. King Louis Philippe was overthrown in the French Revolution of 1848, which created a democracy called the Second Republic. (The First Republic had been in power and had failed during the early years of the French Revolution.) A new French Constitution was put in place, which provided for a nationally elected president; and Louis Napoleon, a nephew of Napoleon I, was elected president of the Second Republic. In 1851, France’s first elected president, Louis Napoleon, seized power in a coup d’état, proclaiming himself the Emperor Napoleon III. The Second French Empire lasted until it was defeated in the Franco-​Prussian War, which France lost, thereby causing Louis Napoleon to abdicate the throne. The culture of absolutism created by Louis XIV lived on.

C.  The Third and Fourth Republics From 1870 until its defeat by Nazi Germany in 1940, France was governed by what was called the Third Republic. By 1870, the French were terrified by executive power, so they put all power in the National Assembly, unchecked

162  the History and growth of Judicial Review, Volume 2 and unbalanced. The Constitution of the Third Republic became law in 1875, and it set up a system of proportional representation with very weak coalition governments. The weak Constitution of the Third Republic was easily overthrown in June of 1940, when Adolf Hitler and Germany’s Nazi government invaded and occupied most of France, while turning the rest of France over to a fascist, puppet government under General Pétain. The parliamentary government of the French Third Republic had had many opportunities in the 1930s to intervene militarily to prevent Adolf Hitler from re-​creating the German army. Hitler’s re-​creation of the German army was a violation of the peace treaty that had been signed at the end of World War I. France also did nothing about Hitler when he annexed Austria and Czechoslovakia and made them part of Germany. The French government of the Third Republic did not build up its military, it did not prevent the Germans from re-​creating their army, and it did essentially nothing in the face of the growing Nazi threat next door. The parliamentary government of the Third Republic thus proved to be weak, indecisive, and ineffective. Charles de Gaulle, who led the Free French Resistance against the Nazis, blamed the weak parliamentary government of the Third Republic for the French loss in 1940 to the Nazis. The weakness in the executive power in the French Third Republic stemmed from an understandable attempt to avoid yet another experience with one man Napoleonic rule. After World War II, General Charles de Gaulle called on the French to adopt a presidential, separation of powers constitution, which he thought would prevent a reoccurrence of the weaknesses and failures of the regime of the Third Republic. De Gaulle was yearning for the pre-​1870 strong rule of emperors like Napoleon I and Napoleon III, but he knew that in the modern era the title would have to be “president” and not “emperor” or “king.” In calling for a presidential Republic, de Gaulle, after World War II, was tapping into a deep-​seated French conservative wish for one man rule that went back to Louis XIV. De Gaulle did not know about or want a system of checks and balances. After World War II, France yet again approved a new Constitution setting up yet another weak parliamentary regime called the Fourth Republic. General de Gaulle retired from public life. The fear of the two Napoleonic Empires led the French again to adopt a parliamentary constitution with a weak executive. Professor Bruce Ackerman has written a splendid history of the Fourth Republic and of its origins in ­chapter 4 of Revolutionary Constitutions: Charismatic Leadership and the Rule of Law. Professor Ackerman shows that the same three resistance parties, which caused the revolutionary Italian Constitution to be written, also wrote and legitimized their charisma as members of the resistance

The Republic of France  163 to Fascism in the Constitution of the Fourth Republic. The French Communist Party, Socialist Party, and Christian Democratic Party won three-​quarters of the vote in the elections that were held for the postwar Constituent Assembly. As in Italy, these parities worked together to create a social welfare state, which they legitimized, because of their charisma as part of the wartime resistance. In France, as in Italy, the division of the revolutionary movement into three parties did not prevent them from agreeing on a new Constitution that was like the Constitution of the Third Republic, but which created a modern social welfare state. The French situation was different, however, from the Italian situation in one critical way because there was one man, General Charles de Gaulle, who had charismatically led four hundred thousand Free French troops during World War II.4 De Gaulle was an egomaniac who refused to work with any political party when the Constitution of the Fourth Republic was being written. De Gaulle argued, rightly in my opinion, that France should have written a presidential separation of powers Constitution, albeit a constitution that allowed mid-​term elections. But, De Gaulle destroyed his charismatic leadership by refusing to work with a political party to accomplish his goals. He succeeded in getting French voters to reject the Constituent Assembly’s first draft of a constitution, only to have a somewhat modified and less socialist second draft ratified on October 13, 1946.5 De Gaulle then retired from public life for twelve years. The French Constitution of the Fourth Republic differed from the Italian Constitution of 1947 in three very important ways. First, it did not create a Constitutional Court with the power of judicial review because of the very deep-​ rooted French dislike of judges, which dated back to the French Revolution. Second, the Constitution of the Fourth Republic did not create an upper house of the legislature, which was coequal to the lower house the way Italy did. And, third, the Constitution of the Fourth Republic did not create a president of France elected by a joint session of the two houses of the legislature with the powers of the president of Italy. In short, the Constitution of the Fourth Republic was not a constitution of checks and balances; and France was, and still is, a very centralized, unitary nation-​state. Power was concentrated entirely in the lower house, which was called the National Assembly. This concentration of power in one entity, and rejection of a system of checks and balances, reflects the long history of French absolutism, which goes back to Louis XIV.



4 5

Ackerman, supra note 1, at 121. Id. at 128.

164  the History and growth of Judicial Review, Volume 2 Proportional representation in the Parliament set up by the Constitution of the Fourth Republic led to a very large and unstable multiparty system and to very weak, ineffective coalition governments. As a result, France had a total of twenty-​one governments in the twelve years between 1946 and 1958.6 Professor Ackerman challenges the conventional wisdom that the Fourth Republic was a weak failure, and he notes that some good laws were adopted between 1946 and 1958. I will stipulate that Professor Ackerman is right, but I feel compelled to note that the Fourth Republic was just as inept at handling its two foreign and military power crises—in Vietnam and in Algeria—respectively, as the Third Republic had been inept when it faced off against Adolf Hitler. Both the Third and Fourth Republics were weak régime d’assemblée governments, as Charles de Gaulle presciently pointed out. Neither of them were checked and balanced regimes like those created in Germany, by the German Basic Law of 1949; or in Italy, by the Italian Constitution of 1947.

D.  The Fifth Republic and the Return of General De Gaulle By the spring of 1958, a coup attempt in French-​held Algeria, which had spread to Corsica, coupled with widespread demonstrations and the refusal of the police and the army to protect government buildings from mobs, led to the fall of the Fourth Republic. General de Gaulle, who had led the Free French Resistance to the Nazis during World War II, emerged from his retirement to become the new head of state and of government on a condition. De Gaulle made it a condition of his assumption of the prime ministership of the Fourth Republic that he be allowed to write a presidentialist, separation of powers constitution, which would be proposed to voters for their approval in a referendum. Charles de Gaulle and his closest allies, led by Michel Debré, wrote a new semi-​presidential French Constitution of the Fifth Republic. De Gaulle made the approval by French voters of this new presidentialist constitution in a popular referendum a condition of his willingness to remain in politics to solve France’s critical Algerian crisis. It is for this reason that 82.6 percent of those voting in France in 1958 favored approval of the new Gaullist Constitution. The Constitution of the Fifth Republic, as amended in critical ways, has turned out to be far more successful than were the Constitutions of the Third and Fourth French Republics. It has thus been copied by more than thirty newly emerging democracies since 1958. The 1958 Constitution has become much more



6

Sophie Boyron, The Constitution of France: A Contextual Analysis 16 (2013).

The Republic of France  165 normatively appealing now that the check and balance of broad powers of judicial review has been added to it. Its use of territorial election districts in which there is a run-​off to produce a winner with 51% of the vote has given France a stable two party system. One alarming feature, however, of the hybrid presidential regime of the French Fifth Republic is that it bears a striking similarity to the hybrid presidential regime of the Weimar Republic, under which Adolf Hitler came to power.7 The French constitution works in my view whereas the Weimar constitution failed because of France’s superior electoral system. Professor Ackerman shows both the perils of French presidentialism in his discussion of Poland, in Chapter 10, and its promise in his discussion of Iran, in Chapter 12. I, however, am not going to address the merits of French presidentialism in this book, but we will turn instead to a description of the key features of de Gaulle’s amended 1958 Constitution.

II.  The Constitution of the Fifth Republic The central feature of the Constitution of the Fifth Republic is its decision to set up a hybrid presidential, separation of powers system. The president of France is elected in a separate election from the elections that pick the members of the two houses of the French legislature: the National Assembly and the Senate. An initial election for president is held once every five years, and the top two vote getters proceed to a runoff election in which whoever gets 51 percent or more of the vote becomes the president. France has had eight presidents since 1958, while the United States has had thirteen presidents during the same period of time. The fewer number of French presidents, in part, results from the fact that French presidents served a seven year term until a five year term when into effect in 2002. The Constitution of the Fifth Republic has thus greatly stabilized French politics as compared with French politics under the Constitutions of the Third and Fourth Republics. Five of France’s eight presidents have come from the Right and three from the Left, and presidents of both sides have cohabited with parliamentary majorities held by their opponents. Moreover, the need to put together a 51  percent majority to win the French presidency has led to the emergence of a two-​p arty system of the Left and of the Right in France at least in presidential elections. This two-​ party system has replaced the huge, chaotic multiparty system of the Fourth Republic. The two parties are moderate, because they must fight tooth and 7 For an insightful comparison, see Cindy Skach, Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic (2005).

166  the History and growth of Judicial Review, Volume 2 nail to win over the 10 percent of the population in the middle in order to win the presidency.

A.  Presidential Lawmaking Power The Constitution of the Fifth Republic gives the French president broad power to legislate by executive decree, while the National Assembly’s powers to make law are limited and enumerated. The French Constitution of 1958 departs from most other G-​20 constitutions in that it expressly shares the legislative power between the elected president of France and the legislature. Charles de Gaulle thought this was necessary “to facilitate the speed and efficiency of the business of government.”8 The French Constitution thus, unlike the U.S. and German Constitutions, expressly allows for the delegation of legislative power. In my view, this is a mistake.

B.  The National Assembly The lower house of Parliament is the National Assembly, which has 577 members. It is much more powerful than the upper house of the legislature, which is known as the Senate. The National Assembly elects the premier of France who then picks the cabinet. The premier can be voted out of office by the National Assembly on a vote of no confidence. The National Assembly shares the lawmaking power with the president. Members of the National Assembly serve a five-​year term, but the president can dissolve the assembly at any time, except during states of emergency. Now that French presidents serve only a five-​year, instead of a seven-​year, term as was initially the case, a pattern has emerged whereby newly elected presidents dissolve the National Assembly and elections are held within a month of the president taking office. To date, the president’s party has always won a majority in these legislative elections. This has eliminated, for the moment, the problem of cohabitation during which the president and premier are from different political parties. Cohabitation did occur when the presidential term was seven, instead of five, years long. When cohabitation occurred in the past, the premier and the National Assembly controlled domestic policy matters, and the president controlled foreign policy and defense matters. It actually worked out quite smoothly in practice.



8

Boyron, supra note 6, at 48.

The Republic of France  167

C.  The French Senate The French Senate is a comparatively weak upper house in that it does not play a role in electing the premier, which role is instead played exclusively by the National Assembly. The Senate does, however, revise legislation and try to perfect it, and it does attempt to oversee the government.9 Members of the Senate also have the power to sit together with members of the National Assembly in a Congrès du Parlement français to vote on proposed constitutional amendments, which can only pass if there is a three-​fifths majority of the two entities sitting together. In addition, sixty members of the Senate can trigger judicial review of the constitutionality of a proposed law by the Constitutional Council before that law is adopted. Given that there are 348 French senators, this is a threshold that is easily met. Finally, the president of the Senate has the power to appoint three of the nine permanent members of the Constitutional Council. The president of the Senate also serves as acting president of France when the presidency is vacant due to resignation or death, as happened with both Presidents de Gaulle and Pompidou. Senators are elected indirectly “by departmentally defined colleges made up for the most part of local elected officials.”10 The Senate is thus “representative of the country’s local communities and [is] a force for moderation.”11 The Senate cannot be dissolved by the president, unlike the National Assembly,12 which limits presidential power, and senators serve a lengthy six-​year term in office, with one-​half of the membership being up for indirect election every three years. Critically, senators are not all elected when the National Assembly is elected. There are 348 senators, so the upper house is quite large, and senators tend to be older on average than members of the National Assembly. The Senate President Gaston Monnerville and senators generally became furious with President Charles de Gaulle in 1962 when de Gaulle bypassed the Senate in an unconstitutional manner to amend the French Constitution by referendum to provide for direct popular election of the president. De Gaulle struck back in 1969 with a proposed referendum that would have eliminated the Senate as a political force. The French people ultimately voted down this proposal, and de Gaulle resigned from the presidency in a huff as a result. De Gaulle’s departure from French politics was a blessing for France, and for the re-​working of the French Constitution of 1958. The French Senate is thus not coequal to the

9 Senates:  Bicameralism in the Contemporary World 162–​95 (Samuel C. Patterson & Anthony Mughan eds., 1999). 10 Id. at 188. 11 Id. at 163. 12 Id. at 165.

168  the History and growth of Judicial Review, Volume 2 National Assembly, but it has real constitutional powers nonetheless. It retains the support of the French people.

D.  The Constitutional Council In addition to introducing a strong popularly elected president into French politics, the Constitution of the Fifth Republic also introduced judicial review of the constitutionality of legislation by the Constitutional Council. The Constitutional Council was created by Charles De Gaulle solely to arbitrate separation of powers disputes between the president and Parliament, but since 1971 it has been gradually transformed into a full-​fledged Constitutional Court. De Gaulle never intended to create as powerful a Constitutional Council as currently exists, and he would not like the institution, or the other changes to his 1958 constitution, if he were with us to see them.

E.  Sovereignty and the Amendment Process Article 3 of the current French Constitution provides that “[n]‌ational sovereignty belongs to the [French] people who exercise it through their representatives and by means of referendum.” Popular sovereignty in France grows out of an acceptance of Rousseau’s idea that a country should be governed by the volonté générale—​the general will. The current French Constitution of 1958, which creates what is called the Fifth Republic, has been formally amended twenty-​ four times. This is considered to be a sign of health, given that the constitutions of the Third and Fourth Republic were never amended, even to correct obvious dysfunctions.13 The French fascination with the general will of the people voting by 50.01% in favor of a constitutional amendment or some other crazy proposal is yet another manifestation of King Louis XIV’s Hobbesian desire to concentrate all power somewhere. If it is not concentrated in a king or an emperor or a president than it must be concentrated in a tiny sliver of a transient majority of the sovereign people as sampled in one election by one set of voters with the possibility of a very low turn-​out. This idea, again, is the antithesis of the checks and balances idea of decentralizing power among multiple office holders, picked for staggered terms, by three differently drawn constituencies so that as James Madison said in The Federalist No. 51 “ambition can be made to counteract



13

Boyron, supra note 6, at 238.

The Republic of France  169 ambition.” Successful constitutions like those of the United States and of the Federal Republic of Germany use systems of checks and balances of which judicial review is a part. The 2020 Constitution of the French Fifth Republic is as close as France has gotten to checks and balances since King Henry IV in the 1500’s, but it could in theory be all undone in one referendum by 50.01% of the French people in a low turn-​out election. The amendment procedure appears in Article 89 of the 1958 Constitution, and it allows either the president or a member of Parliament to propose a constitutional amendment. In fact, the only constitutional amendments that have been adopted have been initiated by the president.14 On some occasions, expert committees have helped to draft proposed constitutional amendments. Article 89 requires that, for a constitutional amendment to pass, the identical text must be adopted by both chambers of the French Parliament sitting together in a Congrès du Parlement français. A three-​fifths vote is required to pass an amendment. President de Gaulle submitted constitutional amendments for an up or down vote in national referenda, but none of his successors have done so. Article 89 clearly makes it unconstitutional to amend the Constitution in a referendum. “[S]‌ince 1962, all constitutional reforms bar one have opted for the parliamentary route.”15 Constitutional amendments are also not allowed in time of war, or when the president has invoked his emergency powers under Article 16. France’s amendment process is less onerous that the U.S. or German amendment processes in that, ordinarily, only a three-​fifths majority of a Congrès du Parlement français can amend the French Constitution. Nevertheless, France’s amendment process is considerably more difficult than the amendment process of the United Kingdom whose constitution can be amended by a simple majority vote of a transient majority of the House of Commons. The French believe they have attained a happy medium with their current amendment process.

F.  French Decentralization and Federalism The Kingdom of France was organized into thirty-​nine provinces until March 4, 1790, when the French revolutionaries abolished the provinces and replaced them with administrative departments. Today, the mainland and the island of Corsica form the twenty-​two metropolitan administrative regions of France. There are also five overseas regions. Some French regions have distinctive histories. The regions of Alsace and Lorraine, for example, have been traded back and forth between Germany and France twice since 1870. The region of Brittany has

14 15

Id. at 239. Id. at 243.

170  the History and growth of Judicial Review, Volume 2 its own Celtic heritage and a native Celtic language, Breton, which is most closely related to Cornish and Welsh. Only about two hundred thousand people still speak Breton today. Normandy is yet another part of France with a rich and unique history, because it was long controlled by the Viking descendants of William the Conqueror, who also won control over England. Corsica is an island in the Mediterranean Sea, north of Sardinia, which was controlled by Genoa, Italy, until its conquest by France in 1769. The people of Corsica speak their own language, which is a blend of Italian and French. In short, the Republic of France is not utterly devoid of regional, cultural, and linguistic diversity. With a Muslim population that now accounts for 10 percent of the French population, there is no lack of religious diversity either. Nonetheless—​as a direct result of the French Revolution—​France was, until recently, one of the most centralized nation-​states in the world. The French Revolution broke out in Paris, and the provinces and regions were enthralled with their local nobility, whom the French revolutionaries were determined to eliminate. The French Revolution was as nationalist a revolution as any that have ever been fought, and the provinces and regions were completely and utterly subordinated. In 1789, nationalism had not yet degenerated into national socialism, so Enlightenment thinkers thought nationalism was anti-​feudal, and therefore a good thing. To make sure that regionalism would never again surface in France, the revolutionaries carved the country up into what, today, are ninety-​six departments. The Declaration of the Rights of Man and of the Citizen of 1789, which was drafted by the Marquis de Lafayette, says in its third article that “[t]‌he principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.” The breaking up of the power of the French regions, which was undertaken ruthlessly by the Sun King, Louis XIV, was furthered by the French Revolution and completed by the Napoleonic Empire. Traditionally in France, the Left had favored national power while the Right had favored decentralization. Professor Martin A. Rogoff notes, however, that the Socialist Parties’ victories in local government elections in the 1970s and 1980s caused the Left in France to change its mind and to actually favor some decentralization of the nation-​state.16 A key book on France and Decentralization is by Vivien A. Schmidt, Democratizing France: The Political and Administrative History of Decentralization.17 Professor Schmidt documents the political history of decentralization in France, from the French Revolution up to 16 Martin A. Rogoff, French Constitutional Law: Cases and Materials 360 (2010). 17 Vivien A. Schmidt, Democratizing France:  The Political and Administrative History of Decentralization (1990).

The Republic of France  171 1990. While it therefore fails to take into account the crucial decentralization constitutional amendments of 2003, the book does explain: (1) how France became over-​centralized, and (2) how that feature of French constitutionalism has started to change. During the François Mitterrand presidency, a framework statute known as the Loi Defferre was passed in 1982. In the case Decentralization Laws, Constitutional Council, Decision 82–​137 DC, February 25, 1982, Rec. 38, the Constitutional Council struck down major portions of this law. In December 2000, another Socialist government tried again to decentralize power—​this time to the island of Corsica, the birthplace of Napoleon Bonaparte. The Constitutional Court again barred the door. This point is vividly illustrated in the 2002 ruling of the French Constitutional Council, with respect to the island of Corsica. In this case, the French Constitutional Council held that the granting of any decentralized powers to Corsica was unconstitutional because France was totally a unitary nation-​state.18 Over time, it became clear that effectuating decentralization would require amending the French Constitution to allow decentralization to proceed, which was done in 2003. Consider the relevant portions of the amended texts of Articles 1, 3, 72–​1, and 72–​2 of the French Constitution of the Fifth Republic, two of which I reproduce below with important language in bold face: Article 1 France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis. * * * Article 72 The territorial communities of the Republic shall be the Communes, the Departments, the Regions, the Special-​Status communities and the Overseas Territorial communities to which article 74 applies. Any other territorial community created, if need be, to replace one or more communities provided for by this paragraph shall be created by statute. Territorial communities may take decisions in all matters arising under powers that can best be exercised at their level. ***

As the above amendments to the French Constitution with emphasis added by me make crystal clear, “A broader political spectrum * * * has embraced decentralization” in France today than in the recent past.19 This is indicated by a report

18

19

Law on Corsica, Constitutional Council, Decision 2001–​454 DC, Jan. 17, 2002, Rec. 70. Rogoff, supra note 16, at 360.

172  the History and growth of Judicial Review, Volume 2 to the president of the Republic that was made in 2009 by the Commission for the Reform of Local Government. As Professor Rogoff points out, it is especially telling that since the 2003 constitutional amendments passed, the Constitution now says that “[t]‌erritorial communities may take decisions in all matters arising under powers that can best be exercised at their level.” This is the heart and core of the subsidiarity principle. It is striking for a supposedly unitary nation-​state to embrace subsidiarity in its Constitution. * * * Recent trends in French constitutionalism include the following: (1) the incorporation and growth of European law; (2) a modest decentralization of power to the regions, which ought to go further; and (3) a modest strengthening of the National Assembly, as against the president, most especially by reducing the president’s term in office from seven to five years.

III.  Judicial Review in France A.  The Historical French View on Judges From the French Revolution of 1789 up until the adoption in 1958 of the Constitution of the Fifth Republic, the Republic of France refused to tolerate any kind of judicial review of the constitutionality of legislation. The traditional French view was that judicial power is oligarchic, opposed to progressive causes, and should be contained as much as possible. This view originated in 1789 with the French revolutionaries who detested King Louis XVI’s judges who had struck down all progressive reforms enacted by the king and who were bulwarks of conservatism in the ancient regime. The French fear of a gouvernement des juges thus began with the French Revolution, and it was reinforced between 1905 and 1937, when U.S.  constitutional law experienced the Lochner era, during which activist conservative judges struck down supposedly progressive federal and state labor laws to defend liberty of contract. The French wanted no part of judicial review of legislation in the American style. They, in fact, thought that such judicial review violated the separation of powers, as the French understood it, because it placed policy-​ making power in the courts that instead ought to reside in the legislature, which represents the general will of the whole French people. An important French voice that was raised in opposition to the orthodox hatred of courts in France came from Alexis de Tocqueville, in the book Democracy in America, which was itself a profound example of comparative constitutional

The Republic of France  173 law scholarship, volume one of which was published in 1835 and volume two in 1840. Chapter Six of Volume I  of De Tocqueville’s masterpiece is a paean to the virtues of judicial review of legislation. Thanks to De Tocqueville some French conservatives, not including General De Gaulle, were sympathetic to judicial power.

B.  Judicial Review in France Since 1958 Professor Ackerman provides, in ­chapter  7 of Revolutionary Constitutions, a thorough and entertaining account of how de Gaulle was able to at last constitutionalize the charisma he acquired as the leader of the Free French military forces in his Constitution of the Fifth Republic.20 Ackerman also tells the amusing story of de Gaulle’s imperious and erratic presidency, from 1958, to his resignation in a huff in April 1969. Suffice it to say that de Gaulle emerges from this account looking more like the Emperor Napoleon III than like George Washington or Nelson Mandela. De Gaulle was an absolute ruler who governed by proposing popular referenda and who repeatedly violated the rule of law. De Gaulle’s presidency was not an auspicious beginning for the history of the Fifth Republic. De Gaulle did not believe in governments of checks and balances, favoring instead one man rule by himself. He was a figure in the tradition of Louis XIV and the two Napoleons. De Gaulle violated the rule of law in 1962 by calling for a national referendum, which unconstitutionally amended the Constitution of the Fifth Republic by providing for direct popular election of the president. As president, de Gaulle was arrogant, egocentric, and impossible to work with. It is something of a miracle that a man, as inadequate as de Gaulle was, was somehow able to dominate French politics for eleven years when he was already an old man. De Gaulle did not obey even his own constitution’s amendment rules. Nonetheless, De Gaulle succeeded, for all of his personal flaws, in producing a Constitution, which with much amendment, has finally succeeded in giving France a stable government with a two-​party system. The Constitution of the Fifth Republic has now lasted for sixty-​two years—​almost as long as the Constitution of the Third Republic. While de Gaulle’s modus operandi in creating this constitution and then unconstitutionally amending it is not to be admired, the end result with many amendments has been, on balance, quite good for France.



20

Ackerman, supra note 1, at 169–​98.

174  the History and growth of Judicial Review, Volume 2 One of the legacies, which de Gaulle’s constitution left to France was his creation of a nine-​member Constitutional Council, which was supposed to only play umpire in separation of power disputes between the president, who is given some lawmaking power; and the National Assembly, which is also given some lawmaking power. The nine justices are selected with one third being picked by the President of the Republic; one third being picked by the Premier as head of the National Assembly; and the final one third being picked by the President of the French Senate. In addition, all former presidents of France are entitled to sit on the council. Justices serve for nine-​year terms with one-​third of the seats opening up every three years. From 1958 to 1974, only the president, the prime minister, the head of the National Assembly, and the president of the French Senate had standing to invoke the Constitutional Council’s jurisdiction. The Constitutional Council’s only important decision during de Gaulle’s presidency was its erroneous 6 to 4 vote to uphold the constitutionality of de Gaulle’s use of a popular referendum to amend the Constitution to provide for direct popular election of the president of France. This decision infuriated the French left and caused some to call for real judicial review by the Constitutional Council. De Gaulle resigned as president in April 1969 in a huff, and a loyal Gaullist, Georges Pompidou, was elected to replace him. As Professor Ackerman points out, Pompidou was in the same position as other loyal insiders who succeeded a charismatic constitutional founder. Ackerman correctly analogizes Pompidou to Shastri, who followed Nehru in India; Mbeki, who followed Mandela in South Africa; and Fanfani, who followed De Gasperi in Italy.21 All of these men had more limited political power than the charismatic constitutional founders who they replaced. Once in office, President Pompidou faced a political problem, which Professor Ackerman describes well in his book. The problem occurred when some officials in the French bureaucracy decided to ban the formation of “a small left-​wing political party” called La gauche proletarienne.22 This led Simone de Beauvoir and Jean-​Paul Sartre to organize a citizens group under the same name. The bureaucracy in Paris refused to recognize La gauche proletarienne, but on appeal the group was recognized. Prime Minister Chaban-​Delmas then caused the National Assembly to ban the group by passing legislation doing this twice over the objections of the French Senate. The president of the Senate then appealed the ban of La gauche proletarienne to the Constitutional Council. As Ackerman says, this was “a do-​or-​die moment” for the Constitutional Council after its humiliating approval of de Gaulle’s unconstitutional referendum providing for

21 22

Id. at 199. Id. at 201.

The Republic of France  175 direct popular election of the president without following the Constitution’s amendment procedures.23 To the cheers of French leftists, the council decided in its 1971 Freedom of Association decision that the law in question was unconstitutional. Even more stunningly, the council said in its opinion that it had the power to enforce: (1) the Declaration of the Rights of Man and of the Citizen of 1789; (2) the Preamble to the Constitution of the Fourth Republic; and (3) the fundamental principles of the Republic, as stated in certain statutes that were, in essence, of constitutional importance. All of these sources of law were mentioned in the preamble to the Constitution of the Fifth Republic. The Freedom of Association ruling surprised people, since preambular text is not usually judicially enforced. In this critical 1971 decision, the Constitutional Council, in effect, gave France a judicially enforceable bill of rights. The 1971 Freedom of Association decision was widely applauded by the French left, which was by then becoming enthusiastic about judicial review. It also transformed the Constitutional Council from being only a separation of powers umpire into being a protector of individual liberties as well. The decision was a classic rights from wrongs decision of the kind discussed in Alan Dershowitz’s book, Rights from Wrongs: A Secular Theory of the Origins of Rights.24 The bureaucracy and the government were clearly in the wrong in trying to shut down left-​wing opposition political speech. The Constitutional Council responded to that wrong by correcting it and by, in effect, giving France a judicially enforceable Bill of Rights. French judicial review thus began, in 1958, as being only separation of powers umpiring, but it expanded hugely, in 1971, for rights from wrongs reasons. As a result of the 1971 Freedom of Association decision, the “joint Socialist-​ Communist Common Program,” which was “the basis of the Left’s campaign *** in the run-​up to the 1972 parliamentary elections *** endorsed the principle of judicial review [and even argued for] the replacement of the Constitutional Council by a ‘Supreme Court’ to defend fundamental rights.”25 As Ackerman observes, “{t]his was a stunning turn-​around, especially by the Communists, who had long feared that bourgeois judges would exercise this power to defend property rights against socialist legislation passed by a working-​class majority in Parliament.”26 “The Left’s Common Program of 1972” made it clear that the Constitutional Council would have to be radically reformed before it could function as a true Constitutional Court.27 23 Id. at 203. 24 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005). 25 Ackerman, supra note 1, at 204. 26 Id. at 204. 27 Id. at 204–​5.

176  the History and growth of Judicial Review, Volume 2 President Pompidou died, unexpectedly, in 1974, and the Gaullist candidate to replace him was Prime Minister Jacques Chaban-​Delmas, who was politically quite weak. Many Gaullist Party members ended up supporting Valéry Giscard d'Estaing, who was a pro-​Gaullist leader of the small Independent Republican Party. D’Estaing had been opposed to the Left throughout his career, but he had also been critical of de Gaulle’s egomaniacal use of presidential power in the 1960s. He won the 1974 presidential election, beating socialist François Mitterrand and earning a seven-​year term in office.28 Valéry Giscard d’Estaing had been critical of de Gaulle’s hyper-​aggressive use of presidential power in the 1960s, and he was from a small minority political party. His prime minister was Jacques Chirac, a prominent Gaullist. D’Estaing was determined to use his one seven year term in office to introduce a meaningful system of checks and balances into the French Constitution. He proposed to do this by allowing a small minority of only sixty members of either the National Assembly or the Senate to refer questions about the constitutionality of proposed legislation to the Constitutional Council. There are 348 French senators and 577 members of the French National Assembly in 2020. D’Estaing’s proposal thus enormously expanded the group of people who had standing to invoke the council’s jurisdiction, and it thus made the council much more powerful. Almost any political movement in the country could get 60 members of one house or the other to raise constitutional challenges to proposed laws before they were promulgated. The Constitutional Council was transformed and hugely empowered. Despite the reservations of right-​wing Gaullists, who did not want to change De Gaulle’s Constitution, and leftists who thought D’Estaing’s proposal did not go far enough, D’Estaing succeeded in passing a constitutional amendment, in 1974, giving sixty members of either house standing to initiate challenges to legislation, before it was enacted, in the Constitutional Council. This momentous change allowed the opposition in Parliament to challenge routinely the constitutionality of almost any bill that the government had passed. Opposition leaders of both the Left and the Right did not hesitate to seek constitutional review of all important legislation, and so the Constitutional Council was transformed into what some called a third chamber of the French legislature. The council still could only review facial challenges to laws before they were promulgated. That is to say laws could only be challenged on their face, before they were promulgated, and not, as applied, which is the form of judicial review in the United States and Germany. French judicial review was still not as strong as was



28

Id. at 205.

The Republic of France  177 U.S. or German judicial review, but it was a whole lot more important than it had ever been before in French history. Which theory of the origins of judicial review best explains Giscard D’Estaing’s constitutional reform of 1974? Here, I think Professor Tom Ginsburg’s “insurance and precommitment” rational comes into play. D’Estaing was from a small political party and wanted access to the Constitutional Court to challenge abuses of power. As a classical liberal, he was philosophically inclined to support judicial review anyway. The Left had been shut of power entirely since 1958. They wanted more judicial review than D’Estaing offered, but they thought some judicial review was better than none. The Gaullists, meanwhile, had the prime minister’s office, but not the presidency. Some judicial review seemed like a good idea to them too. As a result, all sides came together, and Giscard D’Estaing’s constitutional amendment was adopted. The French Revolutionary hatred of judges was finally starting to dissipate.29 The stage was thus set for the next act in this drama, which came when François Mitterrand, a bitter socialist opponent of both Charles de Gaulle, and of his 1958 constitution, was elected president in 1981. Mitterrand proposed to nationalize all of the banks in France and “thirteen of the largest corporations” in the country.30 But, for the first five years of his term as president, Mitterrand would face a conservative majority on the Constitutional Council. In the 1971 Freedom of Association case, the Constitutional Council had proclaimed that both the French Revolutionary Declaration of the Rights of Man and of the Citizen of 1789 and the Preamble to the Constitution of the Fourth Republic were now judicially enforceable. But, when it came to judging Mitterrand’s nationalizations these two documents pointed in opposite directions. The 1789 Declaration protected private property and mandated just compensation for a taking. The 1946 Preamble was a socialist document that allowed nationalization with minimal just compensation. Unsurprisingly, the Constitutional Council, which was dominated by conservatives, said in the Nationalizations Case that the 1789 Declaration trumped the 1946 socialist preamble. Mitterrand could nationalize all the things he wanted to nationalize, but he would have to pay through the nose for doing so. Mitterrand’s nationalizations were thus upheld, but at a cost that prevented the socialists from nationalizing anything else in the near future. Mitterrand considered pulling a Gaullist move and referring the issue of the nationalizations to the country in a popular referendum.31 But, he wisely decided to accept the Council’s validation of the legality of his nationalizations and to

29

Id. at 206–​7. Id. at 207–​8. 31 Id. at 212. 30

178  the History and growth of Judicial Review, Volume 2 pay more for them, thus legitimating the Constitutional Council’s power of judicial review. In 1986, Mitterrand lost control of the National Assembly to the Gaullists led by Jacques Chirac. Chirac proceeded to repeal all of Mitterrand’s nationalizations. Mitterrand’s reward was that he was able to appoint some prominent socialists to the Constitutional Council, which became a bipartisan body. That, in turn, further legitimated judicial review in France.32 Mitterrand appointed Robert Badinter, his minister of justice, as president of the Constitutional Council, and Badinter proposed expanding standing and access to judicial review by arguing for a constitutional amendment that would have given standing to any citizen whose constitutional rights had been violated. Badinter’s proposal failed to be adopted in 1993 by a narrow margin. Nonetheless, it illustrated the depth of the bipartisan support for judicial review by the Constitutional Council in French politics.33 Between 1993, and the election of Nicolas Sarkozy, as president, in 2007, a whole generation of lawyers came of age who were schooled not in a hatred of “gouvernments des juges” but in the studying and parsing of Constitutional Council opinions. This new legal culture allowed Sarkozy to revive the Badinter effort of 1993. Sarkozy appointed a committee led by a conservative former prime minister, Edouard Balladur to study legal reform. Balladur recommended constitutional amendments allowing the Constitutional Council to review presidential states of emergency after sixty days, a two term limit on presidents, and the expansion of judicial review by allowing ordinary litigants in the Court of Cassation or the Council of State to request that constitutional issues in their cases be referred to the Constitutional Council for judicial review.34 The Balladur committee’s proposed constitutional amendments passed a joint sitting of the Senate and the National Assembly by a three-​fifths vote on July 21, 2008. The margin was only one vote.35 Professor Ackerman reports that the 2008 expansion of the Constitutional Council’s jurisdiction caused it to hear “465 constitutional questions raised by private litigants –​expanding its docket by a factor of six.”36 This transformed the nature of the Council by forcing it to hear a large number of claims of individual rights. It can now be said that France has full fledged judicial review of the constitutionality of laws and of executive actions to the same degree as Italy does or the United States does. So what theory of the origin of judicial review best explains the expansion of the Constitutional Courts jurisdiction in 2008? We think that by 2008 judicial review was such an admired feature of both German and Italian constitutional

32

Id. at 212–​13. Id. at 214–​19. Id. at 220–​21. 35 Id. at 221–​22. 36 Id. at 223. 33 34

The Republic of France  179 law that the French wanted to “borrow” the institution to keep up with the times. With socialists, like Badinter, and conservatives, like Sarkozy, both endorsing expanded judicial review, it was clearly an idea whose time had come. The 2008 constitutional amendment allows what the Germans call concentrated judicial review, and it for the first time allowed the Constitutional Court to review the constitutionality not only of new laws before they are promulgated, but also of all old laws that are already on the books. The amendment also lets the Constitutional Council in effect decide not only facial challenges to the constitutionality of laws, but also as-​applied challenges. The 2008 reform is thus potentially huge, although there has been and probably will continue to be some hesitation on the part especially of the Cours de Cassation to refer cases to the Constitutional Council. The two ordinary French Supreme Courts—​the Cours de Cassation and Conseil D’Etat—​are understandably jealous of and feel threatened by the emergence of the Conseil Constitutionel as the most important court in France. It should be noted, however, that French judicial review differs from German and Italian judicial review in one very important way. In Italy, the three parties of the resistance wrote the Italian bill of rights themselves, and they constitutionalized their charisma behind it. In Germany, the Germans wrote their bill of rights as well. In France, however, Charles De Gaulle constitutionalized his charisma in the French semi-​presidential regime. De Gaulle did not, however, intend or expect that the Constitutional Council would be anything more than a separation of powers umpire or that it would enforce the Declaration of the Rights of Man and of the Citizen, 1789. The Constitutional Council did this on its own, and various subsequent presidents of France like D’Estaing, Mitterrand, and Sarkozy expanded the Constitutional Council’s power by adopting constitutional amendments because they liked the check and balance that judicial review added to De Gaulle’s otherwise hyper-​presidentialist constitution. It is important to note this big difference between the Italian, German, and French cases. The Constitutional Council, in addition to having the power of judicial review, also has the power to settle election disputes, advise the president when he declares a state of emergency, and rule on the constitutionality of treaties.37 Once a law has been passed by Parliament, the Conseil has jurisdiction to rule on its constitutionality. Decisions of the French Constitutional Council are different from those of the U.S. Supreme Court in several respects. Constitutional Council rulings are issued unanimously by the entire bench and left unsigned. Unlike with the U.S. 37 John Bell, Jurisdiction of the French Constitutional Council, in French Constitutional Law 30–​33 (1992).

180  the History and growth of Judicial Review, Volume 2 Supreme Court, there are no majority opinions, concurrences, or dissents. They were traditionally written as a series of “whereas” statements, which made them almost impenetrable to read. In this respect, they read more like a mathematical proof or an honorific proclamation rather than a typical American judicial ruling. They give a sense of Cartesian rationality, establishing premises and then proceeding through steps of logical deduction to an eventual conclusion. What are the advantages and disadvantages of this model, as opposed to the American approach? On the one hand, having multiple signed opinions encourages accountability and fosters judicial dialogue both on the bench and between generations, allowing dissents or concurrences that have not yet become law to be discovered by and to influence judges decades after they are written. On the other hand, unanimous, unsigned opinions create a monolithic sense of force and decisiveness, thereby enhancing a court’s legitimacy and authority. Unanimity may be necessary when judicial review is getting started. Chief Justice John Marshall certainly thought so early in American history. Framing opinions through a series of “whereas” statements forces judges to lay out their logic in a clear, precise manner easily understood by observers, though it can become a dry and unimaginative format.

C. Future Reforms My discussion of French judicial review, and of the French Constitution as it has been amended would not be complete without  mentioning some weaknesses in France’s current institutions. First, the composition and appointing process of the Constitutional Council needs revisiting. At a minimum, the Constitution should be amended to remove former French presidents from their seats on the Constitutional Council. Most former French presidents are not constitutional lawyers and are thus not competent to serve on the Constitutonal Council. Second, I would allow a two thirds majority of the National Assembly and of the Senate to each elect half the Constitutional Court justices. The court is needed to rein in the president, so the president’s role in picking its members should be greatly reduced. Doing so would promote the rule of law. Third, the President should be stripped of his power to rule by decree and of his power to declare states of emergency. The Senate should be reduced in size to fifty members; it should be made co-​equal to the National Assembly in lawmaking; and it should represent France’s historic regions. Senators should serve for six year terms with half the Senate being up for re-​election every three years. Finally, the  President’s and the  National Assembly’s terms should be reduced

The Republic of France  181 from five to four years. With these additional tweaks, the French Constitution could be greatly improved.

IV.  Important Case Law A. Abortion In 1974, the French Parliament passed a law legalizing abortions during the first trimester of pregnancy in situations of distress and after counseling, or at any stage of gestation where a woman’s life was endangered or where there was a strong likelihood that a child would be born with serious handicaps. Seventy-​ seven legislators petitioned the Constitutional Council to declare the proposed law to be unconstitutional or in violation of the European Convention on Human Rights’ protection of the right to life. France is a signatory to the European Convention on Human Rights. The Constitutional Council issued a characteristically terse and opaque judicial opinion upholding the French Parliament’s law legalizing abortions.38 It held that it did not have jurisdiction to review the consistency of laws passed by the French Parliament with the European Convention on Human Rights. As a result, the Constitutional Council dismissed the case and upheld the new French national law allowing abortions. The French case is a paragon of judicial restraint compared with either the German Abortion Case or with the U.S. Supreme Court’s opinion in Roe v. Wade.39 Nonetheless, it would be a serious mistake to dismiss the importance to France of the Constitutional Council’s decision upholding the new French national abortion law. By acting as it did, the Constitutional Council legitimized the law in a Catholic country where there was a lot of opposition to abortion. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics40 argued that one of the most important features of judicial review is to legitimize new legislation by holding it to be constitutional. Bickel points out that this is what Chief Justice John Marshall did in his famous commerce clause and necessary and proper clause cases issued by the Supreme Court unanimously in his name. The French Constitutional Court opinion was widely accepted as uncontroversial,

38 French Abortion Case of January 15, 1975, Decision 74-​54 DC Voluntary Interruption of Pregnancy. 39 410 U.S. 113 (1973). 40 Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1961).

182  the History and growth of Judicial Review, Volume 2 unlike the German Abortion Case or Roe v. Wade. It clearly played a role in legalizing abortion in France.

B.  Equality and Women French Constitutional law guarantees equality of rights in general and equality of rights between women and men in particular. Women did not receive the right to vote in France until 1945, twenty-​five years later than in the United States. Nonetheless, the French Parliament took an important step, in 1982, by adopting a law that required that 30 percent of the candidates that each political party put on the ballot be women. The quota was later reduced to 25 percent. The issue was referred by those members of Parliament who had voted against it to the Constitutional Council for judicial review. Article 6 of the Declaration of the Rights of Man and of the Citizen provides that: “[a]‌ll citizens, being equal in the eyes of the law, shall be equally eligible to all high offices, public positions and employments, according to their ability, and without other distinction than that of their virtues and talents.” Article 3 of the Declaration forbids sex discrimination with respect to civil and political rights. The Constitutional Council held in its Decision of November 18, 1982, that the gender quota system for candidates running for political office was unconstitutional.41 The Constitutional Council reiterated this view in its Decision of January 14, 1999. In response, Parliament amended the Constitution to provide that “[s]‌tatutes shall promote equal access by women and men to elective offices and positions.” In light of this amendment, the Constitutional Council upheld a gender quota for candidates running for office in its Decision of May 30, 2000.42 Those interested in learning more about French gender equality law are referred to Rogoff ’s book,43 which discusses Constitutional Council decisions on equal pay for men and women, public employment, and positive discrimination of a remedial type in favor of women. Professor Susan Williams sets out the normative argument in favor of electoral gender quotas in Susan H. Williams, Constituting Equality: Gender Equality and Constitutional Law.44

41 Rogoff, supra note 16, at 324–​25. 42 Id. at 326–​27. 43 Id. at 327–​36. 44 Susan H. Williams, Constituting Equality:  Gender Equality and Constitutional Law 53–​72 (2009).

The Republic of France  183

C. Hate Speech France differs from the United States in that it outlaws hate speech, membership in Neo-​Nazi associations, the wearing of either the Swastika or of Nazi uniforms, and the practice of Holocaust denial. France prosecuted Mr. Roger Garaudy, a French National, for the crime of engaging in Holocaust denial. Garaudy counter-​sued in the European Court of Human Rights claiming his rights to freedom of expression were being infringed. The European Court of Human Rights ruled for France over Garaudy holding that France’s ban on Holocaust denial was permissible. In the United States, Garaudy would have won his case under the First Amendment. The ECtHR case is Garaudy v. France (Application No. 65831/​01). France is thus less protective of freedom of expression than is the United States. I made an affirmative effort to find out whether there were any French Constitutional Court opinions protecting freedom of expression other than the 1971 Freedom of Association case. I was unable to find any.

D. Religion French constitutional law with respect to religion is driven by an ardent form of secularism called Laïcité. French secularism and hostility to the Catholic Church dates back to the French Revolution of 1789. The revolution was “in large part directed against the political and economic power of the Catholic Church.”45 As a result, the Constitution of France states that it is a secular republic. In contrast, the U.S. Constitution takes no position on the secular v. religion issue except to ban establishments of religion, laws prohibiting the free exercise of religion, or religious qualifications for holding office. The U.S. Constitution’s Preamble stands out as compared with many other Preambles from countries around the world because it neither mentions God and nor does it endorse a secular state. French official coolness toward religion is captured by the phrase laïcité, which connotes a high degree of suspicion toward anything that is religious. Hostility toward religion goes way beyond American ideas of the separation of church and state, and it takes the form of an affirmative dislike and distrust of religion. Traditionally, in France, the advocates of a republican form of government opposed religion, while those who favored constitutional monarchy were



45

Rogoff, supra note 16, at 336.

184  the History and growth of Judicial Review, Volume 2 less secular. The birth of the Third Republic, in 1870, left the country firmly committed to laïcité. In 1905, the French passed a major framework statute of constitutional dimensions on the separation of church and state. That statute provided as follows:

1. Law of Dec. 9, 1905 On the Separation of Church and State J.O. Article I.46 The Republic assures freedom of conscience. It guarantees the free exercise of religion subject only to the restrictions stated hereinafter in the interest of public order. Article 2. The Republic does not recognize, pay, or subsidize any religion * * *.

“From 1905 until 1959, the state provided no financial assistance to private, religious education. Pursuant to a law enacted in 1959 (the Loi Debré), private schools, including religious schools, can enter into a contract with the state * * * according to which the state would pay the salaries of teachers and certain other costs.”47 Since the late 1980s, France has been vexed by a nasty debate over the desire of some Muslim French women to wear headscarves to school. The issue of Islamic veils in schools was finally resolved by the European Court of Human Rights in Dogru v. France, 49 E.H.R.R. 8 (December 4, 2008). The court commented approvingly on the French tradition of secularism (laïcité), and it held that France’s banning of Islamic headscarves in schools did not violate Article 9 of the European Convention on Human Rights. Since this decision, France has moved further in its cultural war against Islam, by banning women appearing in public wearing a Burqa, which covers a woman’s body from head to toe. Recently, the French expressed public outrage over Muslim women who were wearing Burqinis rather than bikinis on the French Riviera. It is hard to know where French hostility to expressions of Islamic beliefs will stop. French secularism has deep roots in the French Revolution, and I think stems from the expulsion of the Huguenots in 1685. A diversity of religious beliefs is seen as being dangerous by the French. Moreover, the commitment to secularism is rooted in the French Enlightenment, which Muslims threaten to unsettle. The 1905 Law on the Separation of Church and State established the principle of laïcité, thereby requiring a strict separation between religion and government. Although not officially part of the Constitution, the 1905 Law has taken on deep

46

47

J.O. December 11, 1905, at 7205. Rogoff, supra note 16, at 337.

The Republic of France  185 legal, political, and even cultural meaning. Significantly, the Law states, “The Republic does not recognize, finance, or subsidize any religious group.” The Law was interpreted to prohibit government funding of religion and displays of religious symbols on public buildings, and the Law gave the French government ownership of all religious buildings built prior to 1905.

E.  Protections Against the Taking of Private Property In the late spring of 1981, the then-​new Socialist government of France attempted to extensively nationalize industry and commerce in France.48 As I discussed above, the Constitutional Council in the Nationalizations case allowed the nationalizations to go forward but required the French government to pay much more in just compensation than it wanted to. There is thus some protection for private property rights in French law. We should also note that the French Constitutional Council struck down former President François Hollande’s proposed top tax rate of 75 percent as being unconstitutional. It is hard to imagine an American court being so activist.

V.  Why Did Judicial Review Originate and Grow in France? In summary, the French Constitution, as amended, provides an elaborate system of checks and balances with its bicameral legislature consisting of the National Assembly and the Senate; with its division of the executive power between the president and the prime minister who can be from opposite parties; and with its increasing focus on decentralization. Power is sufficiently dispersed in France so that the Constitutional Council has the political space to act independently within the constitutional architecture unlike the Supreme Court of Japan. I think this dispersal of power over time after De Gaulle had left the presidency is one of many reasons why the Constitutional Council was able to transform itself into a full-​fledged Constitutional Court. I must also note that, as Professor Martin Shapiro has argued, the need to police a separation of powers between the president of France and the premier of France elected by the National Assembly proved to be enough historically to create judicial review in a society that had been very ideologically hostile to it. Professor Shapiro thus opts “for modifying the federalism hypothesis for [the creation and growth of judicial] review to a more general division of powers



48

Id.

186  the History and growth of Judicial Review, Volume 2 hypothesis.”49 Just as federalism umpiring helped to give rise to judicial review in the United States, Canada, Australia, Switzerland, and India, so too did separation of powers umpiring help to give rise to judicial review in France. Professor Shapiro adds that all the countries of Eastern Europe, which were liberated after the end of the Cold War and the collapse of the Soviet Union had to opt for historical reasons for French-​style hybrid—​presidential regimes. Professor Shapiro notes that just as the division of power in France between the president and the Parliament led to the emergence in France of judicial review of the constitutionality of legislation, so too did that same division of power produce the same outcome in all the countries of Eastern Europe, which opted for judicial review in part for separation of powers umpiring reasons. While I agree with Professor Shapiro that the need for a separation of powers umpire caused the creation in 1958 of the French Constitutional Council, I do not think that separation of powers umpiring alone explains the huge growth in the power of the Constitutional Council in: (1) the 1971 Freedom of Association Decision; (2)  the 1974 decision to allow sixty members of either house of Parliament to challenge the constitutionality of proposed legislation; and (3) the 2008 expansion of judicial review allowing the Court of Cassation and the Council of State to refer cases to the Constitutional Council. The 1971 Freedom of Association Decision in particular has a rights from wrongs aspect to it. In this case, President Pompidou’s government was trying to silence a leftist political association by denying it power to organize legally. This was wrong behavior in a constitutional democracy, and the Constitutional Council stepped in to stop it by constitutionalizing the Declaration of the Rights of Man and of the Citizen as well as the fundamental principles of the Republic. The 1789 Declaration, itself, is a rights from wrongs document. The rights it protects were almost all rights that the ancient regime had abridged including all the classical liberal rights of the individual as against the government. The 1974 move to allow sixty members of Parliament to have standing to ask the Constitutional Council to assess the constitutionality of a law was in many ways the key step in giving France judicial review. This change is not explained by separation of powers umpiring alone. The 1974 standing expansion constitutional amendment was championed by then-​President Valerie Giscard D’Estaing, who headed only a small classical liberal group of deputies and who was squeezed on the right by the larger Gaullist block and on the left by a large Socialist block. Under these circumstances, everyone was unsure how much power they really had. This is clearly an instance where Professor Tom Ginsburg’s theory of “insurance and commitment” played the major role in the expansion of



49

Id. at 153.

The Republic of France  187 judicial review. Politicians like Giscard D’Estaing and others may very well have wanted to set a floor below which the protection of their rights could not fall. The 2008 reforms allowing the ordinary courts to refer constitutional questions to the Constitutional Council is best seen in my view as a “borrowing” of this same idea from German and Italian Constitutional law as well as from the general zeitgeist of the time. Judicial review of the constitutionality of legislation has become the norm in constitutional democracies since 1980, and so, here, France was simply keeping up with the times. When one turns to the caselaw, the Constitutional Council is conspicuous in not standing up for freedom of expression and in not standing up for religious liberty. France remains, as it has been since the Revocation of the Edict of Nantes in 1685, a not very libertarian or tolerant country. Its track record on religious freedom, in particular, pales when one compares France to Germany. Judicial review may thus have finally been born in France, but it has yet to accomplish anything very striking. The French do seem to have moved on from De Gaulle’s appalling practice of government by presidentially written national referenda. Since 1969, a real system of checks and balances has emerged in France, which had never existed before. This provides some hope, at least, that perhaps France’s future will be better than its past.

Chapter Seven

The Republic of Korea The Republic of Korea, which is usually called South Korea, is a country of fifty-​two million people with the twelfth largest economy in the world. South Korea is thus substantially more populous than are Canada and Australia, and it has an active and interesting system of judicial review. South Korea is the most densely populated country, among the G-​20 countries, ranking twenty-​ third out of more than 240 nations in population density, according to the United Nations. South Korea ranks 29th in the world in GDP per capita according to the IMF. It has experienced very rapid economic growth for many years now. South Korea is a member of the G-​20 nations, and it has been a constitutional democracy with a civil law legal system and a powerful Constitutional Court since the late 1980s. South Korea is a unitary, nation-​state with a large percentage of the population living in the capital city, Seoul, which has a population of nearly ten million people, approximately one-​f ifth of the national population.

I.  History, Constitution, and Amending Process Korea was originally an independent monarchy in which Neo-​ Confucian thought played a central role.1 Its society was very hierarchical, caste-​based, and essentially hostile to the Western enlightenment values of egalitarianism and individualism.2 In 1910, Japan, which had rapidly westernized itself at the end of the nineteenth century, occupied Korea and turned it into a part of Japan’s growing colonial empire. Korea continued to be occupied by Japan until the end of World War II, when it surrendered to both Soviet and U.S. troops. As a result, the country

1 See generally Dae-​Kyu Yoon, Law and Democracy in South Korea:  Democratic Development Since 1987 (2010). Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003) (South Korea, Taiwan, and Mongolia case studies). 2 See Michael J. Seth, A Concise History of Modern Korea: From the Late Nineteenth Century to the Present (2010).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0008

190  the History and growth of Judicial Review, Volume 2 has been divided, since 1945, into two halves: North Korea, which is desperately poor, thanks to communism but which has nuclear weapons; and South Korea, which is economically prosperous and robust, but which relies entirely on the United States for its military and foreign policy support. South Korea currently has a presidential constitutional system with a unicameral legislature called the National Assembly. The South Korean Constitution creates a separation of powers, protection for human rights, and an independent judiciary, as well as creating a very powerful Constitutional Court. The modern democratic regime, however, only emerged in the late 1980s after South Korea had three bad experiences with hyper-​presidentialism, which turned into dictatorship, as well a military coup d’état. South Korea’s first president, Rhee Syngman, served as president of South Korea from 1948 to 1960 during which time he exercised dictatorial powers and abused human rights. Rhee Syngman was finally overthrown in 1960, but, a year later, General Park Chung-​hee became president, and he too slowly acquired dictatorial powers. President Park Chung-​hee modernized the economy but committed gross human rights abuses. He rewrote the country’ constititution, in 1972, to allow the president to serve an unlimited number of six-​year terms. President Park Chung-​hee was assassinated on October 26, 1979. General Chun Doo-​wan then assumed power after a military coup d’état. In May of 1980, General Chun ordered the Gwangju Massacre of people who were opposed to his rule and who wanted more democracy in South Korea. The Gwangju Massacre is of great symbolic importance in South Korean politics, and as many as 606 people may have died as a result of this massacre. On September 1, 1980, President Chun became president of South Korea having previously led the country as leader of the coup d’état. As president, General Chun imposed martial law, closed universities, banned political activities, abolished all political parties, and censored the press. The 1981 Constitution of the Fifth Republic imposed a seven-​year nonrenewable term on the president. In part because of U.S. pressure, President Chun did not run for re-​election when his term of office expired. In 1987, a university student was tortured to death, which led to massive demonstrations. Nonetheless, Chun Doo-​wan’s political party eventually elected its leader, Roh Tae-​woo, as South Korea’s next president. But, before he could win an election, Roh Tae-​woo had to promise the people of South Korea a much more democratic constitution. This began the transition of Korea from dictatorial rule to democracy. The Constitution of South Korea was initially adopted on July 17, 1948, but it was substantially amended on October 29, 1987, before Roh Tae-​woo was elected president. The current amended constitution is called the Sixth Republic of South Korea. This latest constitution was approved by 93 percent of South

The Republic of Korea  191 Korean voters in a referendum held on October 28, 1987. A free popular presidential election was then held on December 16, 1987, and Roh Tae-​woo, outgoing President Chun’s candidate, won that election. Democracy in South Korea reached full fruition, in the late 1990s, when Kim Dae-​jung was elected president. Kim had previously been jailed by South Korea’s various autocratic governments. Kim was nearly assassinated, was imprisoned, and was exiled to the United States where he taught at Harvard University. Kim Dae-​jung ran unsuccessfully for president of South Korea in 1987 and in 1992. Finally, after the Asian financial crisis, Kim Dae-​jung won the presidency, assumed office in 1998, and there was the first-​ever peaceful transition in power from one president, to a president of a different political party, in South Korea’s history. Kim Dae-​jung is sometimes called the Nelson Mandela of South Korea. As president, Kim Dae-​jung got the South Korean economy booming again. He also created a social-​welfare state in South Korea and reached out to North Korea seeking peace. Kim Dae-​jung received the 2000 Nobel Peace Prize, and he left office in 2003 at the end of his five-​year term. The president of South Korea is elected on a first-​past-​the-​post system, directly by the people, and is now limited to a nonrenewable five-​year term in office. The unicameral National Assembly ratifies the president’s choice of the prime minister. The National Assembly is composed of three hundred members elected to four-​year terms. The Constitutional Court was created during the 1987 revisions to the Constitution. It became operative in 1988. The Constitutional Court is based on the German and Italian models, and it has the last word on all constitutional questions. It has the power to issue judgments with erga omnes effects. The Constitutional Court is a separate court from the Supreme Court of South Korea, and it is a fourth branch of the government along with the legislative, executive, and judicial branches. Constitutional complaints may be filed by individuals with the South Korean Constitutional Court as in Germany. The Constitutional Court of South Korea also has, like the German Constitutional Court, the power to dissolve political parties. It has been very active in holding laws unconstitutional. The Constitutional Court of South Korea has tried two presidents of South Korea who were impeached by the National Assembly. In the first case, the court voted to acquit, while in the second case the court voted to convict, and it removed the president from office for accepting bribes. This led to the calling of a new presidential election. The first case involved the impeachment of President Moo-​hyun Roh, in 2004, while the second case involved the impeachment and removal from office of President Park Geun-​hye in 2016. President Park Geun-​hye was impeached by 234 out of the 300 members of the National Assembly. President Park was

192  the History and growth of Judicial Review, Volume 2 ultimately tried criminally, was found guilty, and was sentenced to twenty-​four years in prison. In the May 9, 2017, election, which was held to replace President Park, President Moon Jae-​in was elected president by the people of South Korea. The Constitutional Court of South Korea consists of nine justices who serve six-​year renewable terms. While all nine are technically appointed by the president of South Korea, only three are appointed directly by the president; another three are appointed by the president from a list of candidates drawn up by the chief justice of the Supreme Court, which is separate from the Constitutional Court and is part of the ordinary court system; and the final three are appointed by the president from a list of candidates elected by the National Assembly. There is a mandatory retirement age of sixty-​five for the justices and of seventy for the head of the court, who is designated by the president. The creation of the Constitutional Court, in 1987, was a reaction to past human rights abuses. Additional important constitutional reforms were also adopted to curtail hyper-​presidentialism, and South Korea has now remained democratic for more than two decades. The president of South Korea is now limited by the constitution to one five-​year term in office. The president is directly elected by the people, who also directly elect the unicameral legislature. Presidential emergency powers have been limited, and the Constitutional Court can and has removed South Korean presidents who have been impeached by the one-​house legislature. The Constitutional Court enjoys widespread public trust and support, and many political disputes have been resolved by it. The Constitutional Court issued a Baker v. Carr-​like ruling that ended the malapportionment of electoral districts, and a new electoral system was put in place that gives every voter two votes: one to be cast in a geographic constituency election, and the other to select legislators by proportional representation. The Constitutional Court is an active and important player in South Korea’s new constitutional democracy.3 Constitutional amendments to the South Korean Constitution are governed by Chapter X of the Constitution. Amendments may be proposed either by a majority of the total members of the National Assembly or by the president. Ratification of a constitutional amendment requires the concurrence of two-​ thirds or more of the National Assembly, and the proposed amendments to the Constitution are then submitted to the people for a vote in a national referendum not later than thirty days after passage by the National Assembly. Ratification 3 See generally Constitutionalism in Asia in the Early Twenty-​First Century (Albert H.Y. Chen ed., 2014); Introduction to Korean Law (2013); Dae-​Kyu Yoon, Law and Democracy in South Korea: Democratic Development Since 1987 (2010); Ian Neary, Human Rights in Japan, South Korea, and Taiwan (2002); Japanese Constitutional Law (Percy R. Luney Jr. & Kazuyuki Takahashi eds., 1993).

The Republic of Korea  193 occurs only if more than one-​half of all votes cast, by more than one-​half of voters eligible to vote in elections for members of the National Assembly, are in favor of the proposed amendment. South Korea’s long history with presidential dictatorship, and the election mainly of conservatives to be president, is partly the result of its very tense relationship with its aggressive communist neighbor, North Korea. North Korea has nuclear weapons and is a highly militarized state. It has never abandoned its desire to control all of Korea. The North Korean situation has greatly complicated efforts to maintain a constitutional, rule of law regime that respects fundamental rights in South Korea.

II.  Judicial Review, Bill of Rights, and Equality Guarantee As I noted, the Republic of Korea has a long and resplendent history that goes back many centuries. Since 1948, however, it had a very long and troubled history with many abuses of human rights in all forms. Prior to 1987, South Korea was a hyper-​presidential dictatorship with a terrible human rights record. The Constitutional Court was created in 1987 to improve protection of human rights and to prevent future presidential dictatorships. South Korea, like Japan and China, borrowed its ordinary law from the civil law tradition, but it borrowed its public law and Constitution heavily from the United States. At the insistence of Dr. Syngman Rhee, it created a unicameral legislature, which elected a premier, and a very strong president. “The critical factor in Korea’s adoption of presidential government was Dr. Syngman Rhee’s strong personality,”4 as well as his admiration for the U.S. Constitution, which he misunderstood. South Korea is only one of many nations to borrow presidentialism from the United States, but not the American system of checks and balances that includes midterm elections. Badly borrowed U.S. presidentialism led to dictatorship in South Korea, as it has done in Latin America, the Philippines, Indonesia, and the Russian Federation. Dr.  Rhee’s government turned into a dictatorial regime after constitutional amendments in 1952 and 1958 greatly enhanced presidential power.5 Dr. Rhee resigned in April 1960 after a major student revolt.6 There followed

4 Tscholsu Kim & Sang Don Lee, Republic of Korea (South Korea):  The Influence of U.S. Constitutional Law Doctrines in Korea, in Constitutional Systems in Late Twentieth Century Asia 306–​7 (Lawrence W. Beer ed., 1992). 5 Id. at 309. 6 Id.

194  the History and growth of Judicial Review, Volume 2 the presidential dictatorships of General Chung-​hee Park7 and of General Chun Doo-​wan, described before.8 In 1987, South Korea finally became a constitutional democracy with a system of judicial review of legislation by a Constitutional Court modeled on the German Constitutional Court—​a form of judicial review that is especially well suited to civil law countries like South Korea.9 The 1987 Constitution trimmed presidential power by limiting presidents to one nonrenewable term in office.10 “The Constitutional Court, which consists of nine judges is empowered to decide on the constitutionality of any statute which the courts refer to it for a determination. At least six judges on the Constitutional Court must concur for a holding that provisions of a statute are unconstitutional.”11 “Under the new Constitution, individual rights are reinforced. The most notable improvements in civil rights are in the areas of criminal procedure and the freedom of expression, association and assembly.”12 Given the traditions of Buddhism and Confucianism in East Asia, which emphasize responsibilities over rights, the success of the South Korean Constitutional Court is a striking contrast to the failures, for example, of the Supreme Court of Japan.13 The court has surprised observers by being very active, and it has created new rights, such as the right to know, while securing the right to happiness of the citizenry.14 It has also curtailed the scope of South Korea’s National Security Act and of its Anti-​Communist Act.15 The fact that the Korean Constitutional Court has adjudicated two presidential impeachments and has removed a president is a testament to the power of the Constitutional Court and to the successful weakening of the office of the presidency, which was the object of the reforms in 1987. The South Korean Constitution protects individual liberties, and it imposes some duties on individuals in Chapter II, which runs from Article 10 to Article 39. The list of classical, liberal negative liberties of the individual against the government is thorough and comprehensive. One striking feature of the South Korean list of individual rights and duties is the broad language with which the chapter starts. Article 10 of the South Korean Constitution thus says:

7 Id. at 311. 8 Id. at 319. 9 Id. at 324–​25. 10 Id. at 325. 11 Id. 12 Id. at 326. 13 See William Shaw, Social and Intellectual Aspects of Traditional Korean Law:  1392–​1910, in Comparative Law: Historical Development of the Civil Law Tradition in Europe, Latin America, and East Asia 574–​76 (John Henry Merryman, David S. Clark, & John Owen Haley eds., 2010); Ginsburg, supra note 1 at 53. 14 Ginsburg, supra note 1, at 54. 15 Id. at 55.

The Republic of Korea  195 Article 10 [Dignity, Pursuit of Happiness] All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.

The right to pursue happiness and the recognition that individuals have fundamental and inviolable rights reminds one of the U.S. Declaration of Independence, and of the U.S. state constitutional guarantees of Lockean natural and inalienable rights. The South Korean Supreme Court (KCC) has been quite vigorous in enforcing the South Korean Bill of Rights, as well as in policing the democratic process. The KCC has decided thousands and thousands of cases since it was first created in 1988. The KCC has nine justices. Jongcheol Kim in “Upgrading Constitutionalism:  The Ups and Downs of Constitutional Developments in South Korea Since 2000”16 notes that “[t]‌he KCC has come to hold since its establishment that human dignity and worth under Article 10 of the Constitution can be elaborated in three major specific rights: 1) the right to self-​determination (or personal autonomy), 2) the general right to free activity, and 3) the right of personality.”17 Professor Kim elaborates that the right to self-​determination has been held to include “the right to personal information, the right to rest, and the right to smoke or the right to be free from smoking.”18 Professor Kim adds that the “most controversial part of self-​determination includes the right to sexual self-​ determination, which means that every human being has the freedom to choose his or her sexual relationships.”19 Thus, the KCC has heard four challenges to adultery laws, but so far there have been only five votes—​not the required six votes—​to hold the Korean adultery law unconstitutional. The KCC has held that women and men have equal rights with respect to sexual relationships.20 The KCC has upheld the constitutionality of the death penalty on a 5 to 4 vote.21 Finally, and importantly, Professor Kim notes that the KCC has held that a law forbidding doctors from informing mothers of the gender of their fetuses was unconstitutional.22 The KCC has been very active in other Bill of Rights subject matters.

16 Jongcheol Kim, The Structure and Basic Principles of Constitutional Adjudication in the Republic of Korea, in Litigation in the Republic of Korea 129–​30 (K. Cho ed., 2010). 17 Id. at 85. 18 Id. at 86. 19 Id. 20 Id. 21 Id. 22 Id. at 87.

196  the History and growth of Judicial Review, Volume 2 The Constitution of Korea protects equality before the law in Article 11, which provides that: (1) All citizens are equal before the law, and there may be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status. (2) No privileged caste is recognized or ever established in any form. (3) The awarding of decorations or distinctions of honor in any form is effective only for recipients, and no privileges ensue therefrom.

Jongcheol Kim, in “Upgrading Constitutionalism:  The Ups and Downs of Constitutional Developments in South Korea Since 2000,” in Constitutionalism, in Asia in the Twenty-​First Century,23 points out that the Korean Constitutional Court construed this article as requiring only rational basis scrutiny of classifications until 1999, when it adopted a new, two-​tiered proportionality test in the Extra-​ Points Premium for Veterans Case.24 Under its new test, the KCC upheld as constitutional a benignly-​motivated discriminatory law, which could include laws providing for affirmative action for women.25 Americans will note with interest that the Constitution of Korea explicitly bans discrimination only on the basis of sex, cultural life on account of sex, religion, or social status. Race discrimination is not mentioned on this list. But, section 2 of Article 11 forbids race direction, indirectly, by saying that “No privileged caste is recognized or ever established in any form. As a practical matter, Professor Kim says this is necessary since Korean law has long discriminated against women. The Korean Constitutional Court has struck down as unconstitutional both: (1) a law that prohibited children from following their mother’s surname, because it results in gender inequality, in determining their choice of the family name; and (2) a law that defined the household as the basic unit of family law, which could only be headed by direct male descendants.26 Gender discrimination is thus an issue in East Asia, as well as in the United States, Germany, France, India, and South Africa. Professor Jongcheol Kim, in “Upgrading Constitutionalism: The Ups and Downs of Constitutional Developments in South Korea Since 2000,”27 claims that the KCC has vigorously protected freedom of expression rights while striking down efforts at censorship.28 Like its counterparts in most liberal democracies, the KCC

23 Id. 24 See Kim, supra note 16. 25 Id. at 87. Constitutional Court Decision 2000Hun-​Ma25, Feb. 22, 2001, 13 Korean Const. Ct. Reports No 1,386. 26 Kim, supra note 16, at 88. 27 In Constitutionalism in Asia in the Early Twenty-First Century (Chen ed. 2014). Copyright © 2014 Cambridge University Press. Reproduced with permission. 28 This tendency initiated from Constitutional Court Decision 93Hun-​ Ga13, 91Hun-​ Ba10 (consolidated), Oct. 4, 1996, Korean Constitutional Court Reports, Vol. 8, No. 2, 212, 225, concerning the Korea Public Performance Ethics Committee, and continued in the first decade of

The Republic of Korea  197 developed some criteria by which the constitutionality of any legislation limiting freedom of expression can be evaluated. Two important cases deserve mention. In 2008, the KCC struck down a law regarding films that could only be shown to special audiences at reserved times of day as infringing on the freedom of expression guaranteed by the Constitution because it was void for vagueness.29 In 2010, the KCC also struck down Article 47(1) of the Electric Telecommunication Act, which made it a crime to transmit false communications with the intent of harming the public interest on void-​for-​vagueness freedom of expression grounds.30 The most controversial case in the freedom of expression area is the Newspapers Act case in 2006. The then President Roh Moo-​hyun was a champion of media reform even before he came into power because he believed that unfair competition in a media market dominated by monopolized press companies had been a major cause of a distorted political process in favor of conservative vested interests. In fact, three major conservative presses, the Chosun Ilbo (“Daily”), the Joongang Ilbo, and the Donga Ilbo, occupied 60 percent of the press market. The ruling Open Uri Party managed to pass the Newspapers Act, which sought to correct this situation.31 The KCC struck down part but not all of the Newspapers Act upholding a ban on newspapers not owning broadcasting stations. Not surprisingly, when the conservative GNP returned to power, after the 2007 presidential election, and 2008 parliamentary election, the Newspapers Act was revised again, in 2009, so that newspaper companies were again able to own broadcasting companies. In the meantime, the KCC considered controversial cases of freedom of assembly and demonstration, such as the Nighttime Outdoor Assembly Prohibition case. This case gave the head of police power to grant or withhold permission to hold outdoor assemblies between sunset and sunrise. On September 24, 2009, the KCC held that a such regulation was incompatible with the Constitution.32 The KCC has not been protective of religious liberty or of freedom of conscience. In a well-​known 2002 case, the KCC ruled that incarcerated citizens could be required to sign an oath in order to seek parole. The court reasoned that parole was a privilege and not a right, so the oath requirement was constitutional.33 The KCC has also held that conscientious objector status to the military draft is not allowed in South Korea.34 the twenty-​first century, for example, Constitutional Court Decision 2000Hun-​Ga9, Aug. 30, 2001, Korean Constitutional Court Reports, Vol. 13, No. 2, 134-​136, 150–​51, concerning the Korea Media Board. 29 Constitutional Court Decision 2007HunKa4, July 31, 2008, Korean Constitutional Reports, Vol. 22, No. 2, Part 2, 684. 30 Constitutional Court Decision 2008Hun-​ Ba157.2009Hun-​ Ba88, Dec. 28, 2010, Korean Constitutional Reports, Vol. 22, No. 2, Part 2, 684. 31 Constitutional Court Decision 2005Hun-​Ma165, June 29, 2006, Korean Constitutional Reports, Vol. 18, No. 1, Part I, 337. 32 Constitutional Court Decision 2008Hun-​Ka25, Sept. 24, 2009, Korean Constitutional Reports, Vol. 21, No. 2, Part I, 427. 33 Const. Court Decision 98Hun-​Ma425,99Hun-​Ma170.498 (consolidated), Apr. 25, 2002, Korean Constitutional Court Reports, Vol. 14, No. 1, 351, 364–​66. 34 Const. Court Decision 2002Hun-​Kal, Aug. 26, 2004, Korean Constitutional Reports, Vol. 16, No. 2, Part I, 141.

198  the History and growth of Judicial Review, Volume 2

III.  The Origins and Growth of Judicial Review in South Korea As the discussion in this chapter indicates, South Korea has turned its back on hyper-​presidentialism and has developed a very advanced system of judicial review of legislative and executive acts. The power of the Constitutional Court was vividly on display in the ouster by the court of an impeached president in 2017. There are several explanations for the origins and growth of South Korean judicial review. First, I think the creation of judicial review and of the Constitutional Court, in 1987, and the other amendments to the Constitution made at that time, were clearly the result of a rights from wrongs phenomenon triggered by three presidential dictatorships, which had grossly abused human rights between 1948 and 1987. South Korea vindicates the analysis of Alan Dershowitz in Rights from Wrongs: A Secular Theory of the Origins of Rights.35 Examples of the abuses of power, which led directly to the creation of the Constitutional Court were things like the following: (1) the Gwangju Massacre, (2) the imprisoning and torturing of people because of their political views, (3)  the censoring of the press, and (4) the banning of political parties by South Korean presidential dictators. It is not an accident that the Constitutional Court was created, and that judicial review was started, in 1987 when the dictators finally began to lose their grip on power. The whole point of the 1987 constitutional reforms was to make it hard for such a presidential dictatorship to happen again. Giving the Constitutional Court the power to remove South Korean presidents was a rights from wrongs attempt to restore the rule of law. South Korean judicial review thus, like judicial review in India, South Africa, Germany, and Italy is a primarily a rights from wrongs phenomenon. Second, and much less importantly, I would note that South Korea has a presidential separation of powers system in which power is divided between the unicameral National Assembly and the president. This makes it absolutely essential that there be an umpiring body. The KCC has played this umpiring role having, for example, heard two impeachments of presidents of South Korea and having reinstated one South Korean president while removing the other. It is hard to imagine a more dramatic example of separation of powers umpiring than this. Third, I defer to Professor Tom Ginsburg, who has much greater expertise on South Korea than I do, and who claims that judicial review emerged in South Korea primarily because two relatively coequal political parties wanted it for reasons of “insurance and commitment” so that fundamental rights would be 35 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005).

The Republic of Korea  199 protected when one party or the other was out of power. I agree with Ginsburg that this explains part of South Korea’s support for creating a Constitutional Court in 1987, but I suspect the rights from wrongs phenomenon was in practice, much more important. Fourth, by the 1980s, the World Bank, the IMF, and global trading partners had all come to associate regimes with judicial review of legislation as being less corrupt and more prone to observe the rule of law than were regimes without this institution. There has thus been a lot of borrowing of judicial review by various countries in modern times. I do think that borrowing is part of the explanation for the origins of judicial review of the constitutionality of legislation in South Korea. Fifth, judicial review has flourished in South Korea, but not in its East Asian neighbor, Japan, because there is a separation of powers in South Korea, which is lacking in Japan. This gives the South Korean Constitutional Court the political space in which it can exercise some power: space that the Supreme Court of Japan quite simply does not have. The memory of the terrible wrongs committed by presidential dictators from 1948 to 1987 also legitimates the Constitutional Court’s exercises of power. I thus conclude that judicial review of the constitutionality of legislation has emerged and grown in popularity for all of these reasons put together, but primarily for rights from wrongs reasons. The most important lesson to be drawn from South Korea’s highly active and very libertarian and powerful Constitutional Court is that East Asia’s culture of Confucianism and Buddhism, with their emphasis on duties and social harmony, are not per se inconsistent with a nation having a very activist, libertarian Constitutional Court that protects vigorously Enlightenment values. The experience in Japan of almost no Supreme Court judicial review is attributable to flaws in Japanese constitutional design and not to the culture of East Asia. There is every reason to think that if Japan had a Korean or German-style Kelsenian Constitutional Court, it could be just as active in protecting Enlightenment values as is the Korean Constitutional Court.

Chapter Eight

The Federative Republic of Brazil The Federative Republic of Brazil is today both the fifth most populous and also the fifth largest country in the world. It is a racially diverse society of 193 million people, of which a little less than half are of white ancestry, 43 percent are of mixed racial ancestry, 7 percent are of African ancestry, and the rest are of Asian ancestry or are the descendants of indigenous peoples. Brazil has the sixth largest economy in the world, and it occupies 47 percent of the continent of South America. The Brazilian federation consists of twenty-​six states, a federal district around the capital of Brasilia, and municipal governments with separate constitutional status. Brazil’s federal government is based on the U.S.  separation of powers model. Brazil ranks 192nd out of 244 nations in a United Nations (UN) study of population density, so, like the United States, it has lots of room to grow. Brazil is clearly an emerging power economically and in global affairs.1 It is also a country that is characterized by deep inequalities of wealth, income, and racial privilege.2 Virgilio Afonsa da Silva, The Constitution of Brazil: A Contextual Analysis (2019) explains that since Brazil became independent of Portugal, in 1822, it has had eight constitutions, two coups d’état’s, and one empire, which was overthrown and replaced with a republic.3 For the last thirty-​two years, however, Brazil has prospered under its eighth, and current, constitution. Nonetheless, corruption scandals and two successful constitutional impeachments of Brazilian presidents during the last twenty-​five years suggest the Brazilian constitutional system is experiencing strain. I rely on da Silva's superb book throughout this chapter.

I. History The area that we call Brazil today was first “discovered” by Europeans in 1500, when Portuguese explorers landed in Brazil. Europeans, in Brazil, encountered 1 See generally Marshall C. Eakin, Brazil:  The Once and Future Country (1998). On Brazilian constitutional law, see Law and the New Developmental State:  The Brazilian Experience in Latin American Context (David M. Trubeck et al. eds., 2013); Jesse Russell & Ronald Cohn, Constitution of Brazil (2012). 2 Virgilio Afonsa da Silva, The Constitution of Brazil: A Contextual Analysis 1 (2019). 3 Id.

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0009

202  the History and growth of Judicial Review, Volume 2 Native Americans who were very simple hunter-​gatherers, and not a complex civilization. Brazil’s Native Americans thus did not include millions of inhabitants, like the Empire of the Incas, in the Andes Region, or of the Empire of the Aztecs, in Mexico.4 The indigenous population of Brazil was almost completely annihilated as a result of exposure to new diseases of European origin, Portuguese war making, and enslavement. Only very small indigenous minorities remain present in Brazil today. In 1494, Portugal and Spain signed a treaty, with the blessing of the Pope, dividing the new world in South America between them.5 Most, although not all, of what is the current country of Brazil fell into the Portuguese zone. The country received its name, according to da Silva, from Brazilwood, which became a highly valued export. France refused to recognize Portugal’s claim to Brazil, and so the king of Portugal decided to colonize his new colony so as to protect it from French incursions. Cristiana Belon Fernandes et al., in Constitutional Law in Brazil,6 explains that Brazil was initially a loosely connected collection of confederated colonies that were a part of what was then the Portuguese Empire. There were hereditary captaincies, which were very decentralized.7 Da Silva explains that this system was replaced in 1548 with a centralized administrative system. Note that the Portuguese colonial system was very different from the English colonial system of issuing corporate charters to self-​governing colonies advised by a royal governor. Colonial Brazil had no experience with self-​ government akin to the experience of the thirteen original North American states. Colonial Brazilian states were also fundamentally alike in that all the colonists were Portuguese Catholics and their slaves. In contrast, the thirteen North American states included Puritans, Quakers, Shakers, Seekers, members of the Dutch Reformed church, Jews, Catholics, and members of the Church of England. Brazil, in contrast, was divided for administrative purposes into states that were not really very different from one another unlike the situation in the United States. The motivations that led the Portuguese to settle in Brazil in the 1500s and 1600s were very different from the motivations of those Englishmen who founded the New England colonies of Plymouth, Massachusetts Bay, Hartford, Connecticut, New Haven, Connecticut, New Hampshire, and Newark, New



4

Id. at 1. Id. at 11. 6 Cristiana Belon Fernandes et al., Constitutional Law in Brazil 17–​41 (2012). 7 da Silva, supra note 2, at 12. 5

The Federative Republic of Brazil  203 Jersey. The Englishmen who founded these colonies were Puritans who had rejected the Established Church of England, which is today the Episcopal Church in the United States. The Puritans outlawed the Church of England in their New England colonies because they thought it was too Catholic in that congregations did not elect their own ministers, there was ornate use of neo-​Gothic architecture and stained-​glass windows, and the King was the head of the Church who appointed the Archbishop of Canterbury who appointed bishops who then appointed priests. The Puritan New England colonies rejected all of that. Congregations elected their own ministers. Churches were built out of wood and were painted white. There was no stained glass anywhere; windows were all transparent. There was no music played in church. All the colonists dressed in dark, simple cloths and morals were tightly regulated. Whole families emigrated to New England and not just single men seeking good fortune and adventure. The New Englanders did not inter-​marry with Native Americans or with their small numbers of African slaves. John Winthrop proclaimed that New England would be “a city on a hill” to the corrupt Christian world of Europe. It would symbolize true Christianity put into practice. New England was a paradigm of American Exceptionalism from the start. The American Revolution—with its proclamation of a Novus Ordo Seclorum (A New Order of the Ages), and its written democratically adopted Constitution and Bill of Rights was American Exceptionalist from the Spirit of 1776 on. The motivations of those Portuguese men who settled in Brazil were not religious or ideological. These men, and they were almost all men, were out to make money and own land that they could not own in Portugal. From the beginning, Brazilian men intermarried with Native American and African American women producing a large progeny of mixed racial descendants. Brazil was not founded to be as Ronald Reagan embellished John Winthrop’s language “A Shining City on a Hill.” There was no founding ideological or religious crusade. Brazilians and Portuguese were equally Catholic and very homogenous. There was and never has been a movement of Brazilian Exceptionalism to change the whole world. Brazil was not founded to be “a Shining City on a Hill”, and it has never aspired to become one. The Brazilian states differed little from one another while each American colony had its own established church, except for Rhode Island, which established a separation of church and state.” The Brazilian colonies were governed by Portuguese Governors with little popular input. The thirteen North American colonies in 1776 were each themselves vibrant democratic regimes. Given these radically different colonial experiences of 169 years of democratic self-​government in North America and monarchy in Brazil, it should surprise

204  the History and growth of Judicial Review, Volume 2 no-​one that the United States from 1789 to 2020 has had a written constitution and Bill of Rights with constitutional democracy being the nature of the U.S. regime. Brazil, in contrast, was a monarchy with an Emperor for many decades after independence. The Brazilian states, which were all Catholic had little power whereas the 13 United States, each with its own religious tradition, was a vibrant federation from the start. Da Silva observes that in 1807 the French Emperor Napoleon invaded Portugal. In 1808, the Portuguese royal family fled from Portugal to Brazil as a result. The transfer of the royal court to Brazil transformed the colony, which opened its first bank, its first medical schools, and its first printers of newspapers and books.8 Somewhat ironically, the Portuguese court brought with it the new French Revolutionary ideas of classical liberalism and democratic governance. When Dom Joao, the Portuguese royal family’s regent, returned to Portugal from Brazil, he left behind his oldest son, Dom Pedro, who he named to be the regent of the United Kingdom of Brazil. In 1822, Dom Pedro, who had come of age, was pressed to return to Portugal, and he instead led Brazil in declaring its independence from the Portuguese Empire. Brazil’s first Constitution, the Imperial Constitution, was issued two years later, in 1824, by the Emperor Dom Pedro I. The Constitution of 1824 created a four-​branch system of government with the separation of legislative, executive, and judicial power. In addition, the Emperor Dom Pedro held the “moderating power” to adjudicate any separation of powers disputes that might come up. The idea of a fourth moderating power was supposedly drawn from the work of Benjamin Constant. Constant, however, never envisioned the monarch as holding simultaneously the executive power, the moderating power, and the power to appoint senators.9 The transition to independence was fairly peaceful, and certainly there was no equivalent in Brazil of anything remotely resembling the American Revolution. Slavery existed and was legal and widespread in Brazil, until 1888. An estimated 4.9  million African slaves were brought to Brazil, more than went to any other country by far. In comparison, about 600,000 slaves, or 5% of the 12 million slaves imported to the New World ended up in the United States. More than half of all Brazilians when independence was declared may have been slaves. Slavery of African Brazilians led to long-​standing abuses and radical disparities in wealth and income that are in some respects worse today in Brazil than they are in South Africa.10 Slavery

8 Id. at 12–​13. 9 Id. at 15–​16. 10 The story is powerfully told in Robert J. Cottrol, The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere (2013).

The Federative Republic of Brazil  205 was finally abolished after the Emperor Dom Pedro II had campaigned for the abolition of slavery for many years. Brazil remained a constitutional monarchy until 1889, when the Emperor Dom Pedro II’s rule was overthrown—​only one year after the emperor had abolished slavery. Brazil then adopted a new Constitution, in 1891—​ the Constitution of the Old Republic—​which remained in effect, until 1934. Da Silva describes this constitution as setting up: (1) a presidential separation of powers system, (2) a federal system, and (3) judicial review. The Constitution of 1891 copied the U.S. Constitution, for the most part, but not the part about midterm elections, and it even named the country “The United States of Brazil.” In 1930, Getulio Vargas began pushing for Fascism and recognition of social welfare rights. A third Constitution was adopted in 1934, which for the first time introduced the disastrous electoral system of proportional representation. Not satisfied with what he had achieved, Vargas then replaced his 1934 Constitution with a fully fascist Constitution, in 1937.11 Da Silva shows that this Constitution stripped the legislature of any meaningful role and led to “a fascist inspired, dictatorial rule” called the Estado Novo.12 With the Allied victory in World War II, the Estado Novo collapsed, and a fifth Brazilian Constitution went into effect in 1946. Presidentialism, federalism, judicial review, and proportional representation were all retained, according to da Silva.13 The country returned to democratic rule after World War II, only to slide back into military rule from 1964 to 1985. During this period, Brazil briefly experimented with parliamentary government; a sixth and a seventh constitution were written; and the military coup, which was “strongly supported by the United States [led to a] period of more than 20 years of authoritarianism, violence, torture, censorship and general lack of freedom.”14 The Military-​Civilian Dictatorship was brutal. Political rights were suspended, states of emergency were declared, and many people died or disappeared. The government gave amnesty to all the government employees who took part in these illegal actions. In 2012, a National Truth Commission was established to expose the human rights violations that had occurred during the Military Dictatorship.15 Da Silva notes that an important shift occurred in 1984 when there was a massive “popular mobilization” demanding “direct election” of the president by the people “(Diretas Ja, i.e., ‘direct elections now’). Millions of Brazilians took to the



11

da Silva, supra note 2, at 18. Id. at 18. Id. at 19. 14 Id. at 20. 15 Id. at 22. 12 13

206  the History and growth of Judicial Review, Volume 2 streets to demand the right to freely choose the President of the Republic in an open democratic election.”16 The election of Tancredo Neves as president of Brazil, in January 1985, put an end to military rule, and, when Neves died before he could be inaugurated, his vice president, Jose Sarney, took office instead, serving as president until 1989. In November of 1985, Congress called for the election of a national Constituent Assembly, which drafted Brazil’s eighth, and current, Constitution. There was massive popular participation in the constitution drafting process, according to da Silva.17 The Constituent Assembly consisted of 487 members of the Chamber of Deputies and 72 senators. Like the Israeli Knesset, the Constituent Assembly did double duty as both a constitution-​writing body and as the ordinary legislature of Brazil.18 In addition, there was a popular referendum in 1993 as to whether Brazil should be a presidential republic, a parliamentary regime, or a monarchy. The vote went heavily in favor of Brazil remaining a presidential republic. While the Constitution was not per se ratified, it was drafted by a specially elected Constituent Assembly, there was “massive popular participation during the whole process,” and there was the legitimating effect of the referendum, which endorsed a presidential republic.19 There is thus no doubt whatsoever as to the Constitution’s legitimacy. The 1988 Constitution greatly concentrated authority in the Supreme Federal Tribunal, which was seen as being necessary to rein in lower courts in a civil law system without stare decisis, and to effectuate needed neo-​liberal free market reforms that were being blocked in the countryside. The New Republic of Brazil has been in continuous existence as a constitutional democracy from 1985 to the present time—​thirty-​five years—​although two presidents have been impeached and removed from office. The first fundamental principle that underlies the 1988 Brazilian Constitution is that the country is a republic and not a constitutional monarchy. Brazilians voted in 1993 in a referendum for this outcome.20 I turn next to a description of the institutions of the Brazilian government, which were created by the 1988 Constitution.

II.  Institutions of the Government A. The President The president of Brazil is elected for a four-​year term of office, and there is a two-​ term limit. The president appoints the cabinet ministers, and he has some power 16 Id. at 51. 17 Id. at 23. 18 Id. at 25–​26. 19 Id. at 26. 20 See Comparative Constitutional Law: Brazil and the United States (Charles D. Cole ed., 2nd ed. 2008).

The Federative Republic of Brazil  207 to make law by executive decree. Da Silva argues that as powerful as the president of Brazil is, he or she cannot govern the country without support from the National Congress. As he says, “The fact that two presidents of Brazil—​Fernando Collor and Dilma Roussef—​were [both] removed from office by the Congress within [the last] 25 years should be strong evidence that overbearing governing may be a bad option for presidents.”21 Although presidents have broad power to initiate legislation, a partial line item veto, and the power to appoint judges (with the Senate) to the Supreme Federal Tribunal (STF), most of what presidents want to get done requires congressional approval. Even the provisional decrees that presidents have the power to enact require ultimate congressional approval, according to da Silva. Since the president’s party has never had more than 20 percent of the seats in Parliament in Brazil’s twenty-​party system, presidents must form coalitions with other parties to get their legislation enacted.22 The key way in which presidents build congressional majority coalitions is by offering ministerial positions to parties that want to cooperate with the president. There is no Incompatibility Clause in Brazil, unlike in the United States, so members of the Brazilian Congress can hold executive branch ministries and offices, while retaining their position as voting legislators. Parties with a lot of seats in Congress get a lot of representation in the cabinet. Da Silva says that the whole “process of forming such a coalition is very similar to forming coalitions in multiparty parliamentary systems and is based above all on offering positions in the cabinet.”23 Unilateral action by the president, alone, leads to impeachment, which is in effect a vote of no confidence in the president by two-​thirds of both houses of Congress.

B.  The Bicameral National Congress Brazil has a bicameral federal legislature, which consists of a Federal Senate and a Chamber of Deputies. The Federal Senate consists of three senators from each of Brazil’s twenty-​six states, plus another three from the federal district for a total of eighty-​one senators. Senators must win a majority statewide in their respective states. Senators serve for eight-​year terms; two-​thirds of the Federal Senate are elected in one year and the remaining one-​third are elected four years later. The Chamber of Deputies consists of 513 members who are elected by proportional representation to four-​year terms with no electoral threshold like Germany’s 5% threshold, which keeps minor, fringe parties out of Parliament. Note that because members of the Brazilian Chamber of Deputies serve the same four year term

21

da Silva, supra note 2, at 41–​42. Id. at 42. 23 Id. at 47. 22

208  the History and growth of Judicial Review, Volume 2 as the president, there is no midterm election to keep presidential power in check. In the U.S., the entire House of Representatives, one third of the Senate and 39 of the 50 state governors are elected in either the midterm election or in an election in an odd numbered year that does not correspond to the presidential election. The party, which holds the presidency in the U.S., always loses the midterm and odd numbered year elections sometimes by catastrophic margins. This is a huge check and balance on U.S. presidential power, which simply does not exist in Brazil or in any other “presidential” system that I am aware of. Steven G. Calabresi and James Lindgren, The President: Lightning Rod or King?, 115 Yale L. J. 2611 (2006). The Chamber of Deputies overrepresents substantially the states of the north, and it underrepresents the states of the south. The Chamber of Deputies thus does not follow the American rule of one person, one vote. This is because even the small population states are guaranteed at least eight deputies, while the large population states are capped at seventy deputies.24 More than twenty political parties are represented in Congress,25 but the need to win a runoff election for president with 51 percent of the vote has led to a two-​ party system of the moderate left and the moderate right in presidential elections. “[P]‌arty lists in Brazil are open and unranked,” so a party’s representation in the Chamber of Deputies depends on the proportional share of the nationwide vote, which the party receives, and party candidates are then seated based on how many personal votes they got. This weakens enormously the party leadership.26 The party leadership cannot control the ranking of the party lists. The STF has held unconstitutional attempts to use electoral thresholds like Germany’s 5 percent threshold.27 See Five Percent Electoral Threshold Case, Brazilian Communist Party and Others v. National Congress and the President of the Republic, Direct Action of Unconstitutionality n. 1351 and 1354 (2007) translated into English in Steven Gow Calabresi et al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials at 1703–​1707 (2016).

C.  The Supreme Federal Tribunal The Supreme Federal Tribunal (STF) is Brazil’s highest and most powerful court. Its sessions have been broadcast on live television, since 2002.28 The STF has proven itself to be both powerful and uncorruptible.29 It has eleven justices who

24

Id. at 30. Id. at 39. 26 Id. at 30–​31. 27 Id. at 31. 28 Id. at 68–​69. 29 Id. at 69. 25

The Federative Republic of Brazil  209 enjoy very high reputations for both competence and character. The recent history of judicial review in Brazil is well-​described in Diana Kapiszewski’s book, High Courts and Economic Governance in Argentina and Brazil.30 As Professor Diana Kapiszewski explains, Brazil and Argentina transitioned to democracy at approximately the same moment (and have been democracies since)* * *, and both have been governed by dominant presidents. Leaders in both countries sought to carry out programs of economic stabilization and neoliberal reforms that raised significant constitutional questions. Further, the two countries’ high courts are similar on a range of institutional dimensions.* * * Despite these similarities—​and the filing of comparable court cases—​strikingly different patterns of interbranch interaction over economic policy emerged in Argentina and Brazil during the first two postauthoritarian decades.31

Professor Kapiszewski explains that Brazil, building on traditions that went back to the 1930s, opted for a “professionalized” and “statesman” Supreme Court—​ the Supreme Federal Tribunal, which is highly centralized, independent, and well-​regarded.32 In Argentina, in contrast, High Court justices were impeached or forced to resign and the size of the membership of the court was regularly changed, just as had been famously done by former Argentine President Juan Peron, who had launched a judicial witch hunt in 1946 and 1947. In present-​day Argentina, political hacks and presidential friends are frequently appointed, and the judiciary is not well-​regarded at all.33 The result in Argentina was that presidents thought they had a right to an automatic majority of the Supreme Court, while in Brazil a professionalized and more independent judiciary prevailed. After the end of authoritarian rule in Brazil, political leaders took steps to strengthen and centralize power in the Supreme Federal Tribunal. The abstract review powers of the tribunal were expanded, and there was a broadening of standing to file abstract cases.34 The Brazilian Constitution of 1988 protected the financial independence of the courts, and it also guaranteed all judges life tenure to the age of seventy-​five.35 The Supreme Federal Tribunal (STF) today consists of eleven justices, who are called ministers, and serve for life until they hit the mandatory retirement 30 Diana Kapiszewski, High Courts and Economic Governance in Argentina and Brazil 5 (2012). 31 Id. 32 Id. at 106–​17. 33 Id. at 73–​89. 34 Steven Gow Calabresi et. al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials at 303–308 (2016). 35 da Silva, supra note 2, at 69.

210  the History and growth of Judicial Review, Volume 2 age. Although eight of the eleven justices currently on the STF were nominated by Worker’s Party presidents, they found most Worker’s Party defendants guilty of corruption in a recent scandal. The STF is one of the few uncorruptible institutions in Brazil. In recent years, the STF has also heard high-​profile cases on such controversial issues as abortion, affirmative action, and same-​sex civil unions.36 Other courts in Brazil include an independent set of state courts, as well as federal courts. The ordinary justice system is headed up by the Brazilian Superior Court. There are also specialized labor courts, electoral courts, and military courts. The Brazilian Supreme Federal Tribunal sits at the top of the judicial pyramid and is both a court that hears appeals of cases under diffuse judicial review and a Kelsenian Constitutional Court, which can issue decisions with erga omnes effect. This was deemed necessary because courts in Brazil, which is a civil law country, do not follow precedent. Brazil has provided in its constitutions for judicial review since 1891. As Professor Diana Kapiszewski points out, only once, in 1930, did a dictator, Getulio Vargas, alter the size and composition of the Supreme Federal Tribunal, and he and all of his successors stuck to the idea that the Brazilian High Court should be professional and above politics.37

D. Federalism Another feature of the Brazilian Constitution is its commitment to federalism. There exist, for example, separate state and federal courts as in the United States and contrary to the practice of other federal regimes like Germany, Canada, and Australia. Brazil had elements of federalism prior to independence, and committed itself to dual federalism in its 1891 Constitution, after the monarchy was overthrown. The 1988 Constitution says that Brazilian federalism is indissoluble, and recognizes the constitutional status of municipalities as well as of the twenty-​six states. Federalism is much weaker, however, in Brazil than in the United States. The reason for this is that at the American founding, all thirteen of the original states had their own religions except for Rhode Island, which practiced total separation of church and state. While time has mellowed this division, there remain in the United States major divisions of opinion with respect to religion depending on what region of the country one is in. Red states and blue states in the U.S. do not see eye to eye on religion. The Brazilian states, however, were 36 da Silva, supra note 2, at 68. 37 Steven Gow Calabresi et. al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials at 754–763; 861–866; 934–939 (2016).

The Federative Republic of Brazil  211 always monolithically catholic and Portuguese-​speaking. They thus never developed as autonomous a status as did the American states with their different established churches. There is also a big difference between federations where the member states have at one time been sovereign on their own, like the thirteen original United States; and federations where the member states have never been independent, as with the states of Brazil. Compare the sense of statehood and self-​identity between citizens of Texas, which was once independent; and citizens of North Dakota, which was carved out of federal territory. There is a stronger form of citizen self-​identification with statehood in Texas as compared to North Dakota. In addition to providing for federalism, Brazil also constitutionally protects the status of municipalities. One might also wonder whether federal constitutional protection of the status of municipal governments is desirable, or whether it becomes a way for a national government to divide and conquer the states in a federation. The weakness of the state governments in Brazil, and all across Latin America, where municipal government is constitutionally protected, suggest that constitutional protection for municipalities gives national governments a powerful tool to use against the states.

E.  Bill of Rights The Constitution of Brazil thoroughly protects first-​generation classical, liberal, individual rights in Chapter II, Title I, and it thoroughly protects social and political rights in later titles of Chapter II. Article 5 of the 1988 Constitution of Brazil protects seventy-​eight enumerated negative liberties of citizens against the state, including all of the classical liberal, individual rights. Moreover, the Supreme Federal Court of Brazil has been very active in protecting individual negative liberties against the state, as well as affirming judicially enforced positive social entitlements. Brazil, in terms of individual rights, has a highly rights-​protective constitutional regime. The Constitution of Brazil is available in English online, and I encourage you to look at it. The Brazilian Bill of Rights is long and detailed. It regulates matters that the U.S.  legal system relegates to statutes. For instance, it resembles its Mexican equivalent in its incorporation of detailed labor-​law provisions on questions such as dismissal without cause, unemployment insurance, minimum wage, overtime, workday limits, vacations, pregnancy leave, occupational safety, retirement, collective bargaining, unionization, and employment discrimination.38 For further study of the Brazilian Constitution, see Steven Gow Calabresi, et. al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and 38 Angel R. Oquendo, Latin American Law 143 (2006). Reprinted with the permission of Foundation Press.

212  the History and growth of Judicial Review, Volume 2 Materials (2016); and Keith S. Rosenn, “Judicial Review in Brazil: Developments under the 1988 Constitution.”39

F. Amendment Procedure The Constitution of the Federative Republic of Brazil is amendable by a three-​ fifths majority of both houses of the legislature, which is a comparatively easy amendment process. However, paragraph four of the article on constitutional amendments forbids amendments that alter the basic structure of the Brazilian Constitution, thus copying the Eternity Clause of Article 79(3) of the German Basic Law. Article 60, III, Paragraph 4 provides that: Paragraph 4. No proposal of amendment shall be considered which is aimed at abolishing: I—​the federative form of the State; II—​the direct, secret, universal and periodic vote; III—​the separation of the Government Powers; IV—​individual rights and guarantees.

This provision greatly narrows the scope within which the Brazilian Constitution can be lawfully amended. The Brazilian Socialist Party once challenged the constitutionality of a constitutional amendment legalizing further the death penalty. The Supreme Federal Tribunal acknowledged that such an amendment might be unconstitutional even to discuss in Parliament, but it held that only the 594 congressmen had standing to trigger such a lawsuit. The Brazilian Socialist Party on its own could not bring such a suit.

III.  Judicial Review in Brazil Brazil borrowed the institution of judicial review from the United States in the nineteenth century. U.S.-​style diffuse judicial review did not work well in Brazil both because of the absence of the doctrine of stare decisis in Brazil, which is a

39 See Keith S. Rosenn, Judicial Review in Brazil:  Developments under the 1988 Constitution, 7 SW. J. L. & Trade Am. 291 (2000). See also Marshall C. Eakin, Brazil: The Once and Future Country (1998) (a brief history of Brazil); Herman Gerlach James, The Constitutional System of Brazil (1923) (studying Brazil’s “Old Republic”).

The Federative Republic of Brazil  213 civil law country; and because of the relative weakness of the Supreme Federal Tribunal. As a result, efforts have been made since 1945, and especially in the current 1988 Brazilian Constitution, to make the Supreme Federal Tribunal a Kelsenian Constitutional Court, as well as its being at the apex of Brazil’s U.S.-​ style diffuse model of judicial review. Brazil thus borrows judicial review both from the United States and from the Federal Republic of Germany. The current Constitution of Brazil has been in effect since 1988, and was drafted by a popularly elected Constituent Assembly over a two-​year period of time. Article 102 of the Brazilian Constitution establishes the powers and competence of the Supreme Federal Court, which does have the power of judicial review. Article 102 provides specifically that: The Supreme Federal Court is responsible, essentially, for safeguarding the Constitution, and it is within its competence: I—​to institute legal proceedings and trials, in the first instance, of:

a) direct actions of unconstitutionality of a federal or state law or normative act, and declaratory actions of constitutionality of a federal law or normative act; * * *.

The court also has jurisdiction over many other matters as well. Under Article 97, “The courts may declare a law or a normative act of the Government unconstitutional only by the vote of the absolute majority of their members or of the members of the respective special body.” Under Article 103, “the following [entities have standing to] file an action of unconstitutionality”: 3. the President of the Republic; 4. the Directing Board of the Federal Senate; 5. the Directing Board of the Chamber of Deputies; 6. the Directing Board of a State Legislative Assembly; 7. a State Governor; 8. the Attorney-​General of the Republic; 9. the Federal Council of the Brazilian Bar Association; 10. a political party represented in the National Congress; 11. A confederation of labor unions or a professional association of a nationwide nature. This long list of institutional actors who have standing to bring matters before the Supreme Federal Tribunal indicates the extent to which the STF is truly a Constitutional Court as well as being a Supreme Court.

214  the History and growth of Judicial Review, Volume 2

A. Foundational Cases The Supreme Federal Tribunal had a Marbury v. Madison constitutional moment, in 1996, when it was asked by the governor of the state of Rio Grande do Sul to hold that Article 45, paragraphs 1–​2 of the Federal Constitution, which allocated seats in the Chamber of Deputies in a way that was inconsistent with the principle of one person, one vote was itself unconstitutional. Under Article 45, the south and southeast regions of Brazil, which had 57.7 percent of the population and produced 77.4 percent of Brazil’s GDP were entitled to only 45 percent of the seats in the lower House of the Congress. The Brazilian Constitution’s deviation from the principle of one person, one vote in picking members of the Chamber of Deputies is outrageous in a constitution that already has an upper house in which the states are equally represented! It is probably due to the excessive influence that the Brazilian Left had over the drafting of the 1988 Constitution given that the gerrymander over-weights the votes of the poorer and more backward states of the Brazilian North. In Governor of Rio Grande do Sul v.  National Congress, Direct Action of Unconstitutionality number 815 (1996), the Supreme Federal Tribunal ruled against the governor saying that the Brazilian Constitution, unlike the German Constitution, did not contain within it a hierarchy of constitutional norms that would have permitted the Supreme Federal Tribunal to strike down as unconstitutional the allocations of seats made by Article 45 of the Constitution in the Chamber of Deputies. The court held it could not judicially review the work of the Constitutional Convention, which had written the 1988 Constitution. This is a very positivist and un-​German outcome. Recall that in the Southwest State Case, the German Constitutional Court struck down as unconstitutional provisions of the Basic Law, which violated its constitution’s hierarchy of norms. In Brazil, the Supreme Federal Tribunal held there was no constitutional hierarchy of norms whereby the one person, one vote principle somehow trumped the expressly unequal constitutional text over-​representing the states of the Brazilian north over those of the south. In another foundational exercise of its power of judicial review, the Supreme Federal Tribunal decided a case concerning a provision in Article 2 of the Temporary Constitutional Provisions Act, which was enacted along with the Federal Constitution of 1988 and which provided for the holding of a national Brazilian referendum on September 7, 1993, to decide two issues: first, whether Brazil should be a republic or a constitutional monarchy; and second, whether it should retain its presidential, separation of powers structure, or become instead a parliamentary democracy. The national plebiscite was originally meant to be a preparatory act for the revision of the Constitution. However, in 1992, the National Congress approved Constitutional Amendment n° 2, changing the date of the plebiscite to April 21, 1993, instead of September 7, 1993. The National Congress also limited the

The Federative Republic of Brazil  215 competence of the Superior Court of Justice to regulate the national plebiscite, and stipulated a date for results of the plebiscite to begin to take effect. In January and February of 1993, the Brazilian Socialist Party and the Democratic Labour Party filed two direct actions of unconstitutionality against Constitutional Amendment n° 2. They were judged at the same time. In The Brazilian Socialist Party and the Democratic Labour Party v. the Nation Congress, Direct Action of Unconstitutionality n° 830 [1993], the Supreme Federal Tribunal held that it had power to hear this case, and it allowed the change in the date of the referendum to be made. Justice Moreira Alves, joined by Justices Francisco Rezek, Celso de Mello, Paulo Brossard, Octavio Gallotti, Néri da Silveira, and Sydney Sanches all agreed that the change of date was a technicality and did not pose a threat to Brazilian democracy or the separation of powers.

B.  Bill of Rights Cases The Brazilian Supreme Federal Tribunal has decided a whole host of Bill of Rights cases on many controversial topics. I will discuss more than fifteen such cases in order to prove that the Supreme Federal Tribunal is now a very active court. Those who are not interested in Brazilian Bill of Rights law can skip ahead to the final section of this chapter where I explain why judicial review originated and grew in Brazil. The cases discussed herein are almost all published in English in Steven Gow Calabresi, et al., The U.S. Constitution and Comparative Constitutional Law (2016). First, in 2012, the Brazilian STF decided a major abortion case involving the right of a woman to abort an anencephalic fetus—​a fetus with no brain who usually dies a few weeks after being born. The Criminal Code, which was written in the 1940s before scientists were able to diagnose anencephaly with ultra-​sound technology only allowed for abortions in cases where the life of the woman is at risk or where the pregnancy is the result of rape. A substantial majority of the Supreme Federal Tribunal voted to hold that women with anencephalic fetuses should be able to abort them notwithstanding the Criminal Code because aborting an anencephalic fetus is not murder since the fetus in question has no brain and cannot survive outside the mother. The justices interpreted the Criminal Code evolutively to take account of the fact that when it was drafted, there was no feasible way to identify brain-​dead fetuses and abort them. The creation of ultra-​sound technology had changed that. The Chief Justice Cezare Peluso wrote a passionate dissent disagreeing in part with the majority that all anencephalic fetuses would die instantly at birth. Second, I think it is important to note, even in the absence of a case like the U.S. cases of Brown v. Board of Education (1954) and Loving v. Virginia (1967), that the Brazilian Constitution does contain a very strong equal protection clause that

216  the History and growth of Judicial Review, Volume 2 pledges “to eradicate poverty and substandard living conditions and to reduce social and regional inequalities.” It also pledges to “promote the well-​being of all, without prejudice as to origin, race, sex, colour, age and any other form of discrimination,” and it makes “All people equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to equality, to security, and to property, on the following terms: 1. Men and women have equal rights and duties under the terms of this Constitution; ***.” The Brazilian Constitution, itself, makes racism a federal crime, which shows how thoroughly the Constitution condemns racism. I am not aware of any other Constitution in the world that has a clause in it that makes an act a crime. A major issue in Brazilian anti-​discrimination law is how to cope with the legacy of Brazil’s long experience with racism and slavery. This issue is examined in a deep and thought-​provoking article by Professor Robert Cottrol, “Brown and the Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts.”40 Professor Cottrol notes that slavery in Brazil was in some ways more extensive and harsher than in the United States. Brazil imported 4.7 million African slaves, as compared to five hundred thousand to six hundred thousand in the United States, and slavery did not end in Brazil until 1888, “more than a generation after Appomattox and the Thirteenth Amendment. Today, Brazil has an African-​descended population of over fifty million, the second largest population of African descent in the world after Nigeria.” Brazilian slavery was often physically harder than U.S.  slavery because the Brazilian slave trade was not banned until 1866, whereas in the United States, it was banned in 1808. Brazilian slaves could be worked to death because new slaves could be imported to replace them, whereas American Southern slaveholders had an incentive after 1808 not to work their slaves to death and to keep slave families together because new slaves could not be imported from Africa after 1808. But, although Brazilian slavery was physically harsher than U.S.  slavery, there was always intermarriage between whites and blacks, and once slavery was abolished in 1888, there was no formal Jim Crow system of discrimination and caste to formally render African-​descended citizens second-​class citizens. Brazilian slavery was thus much harsher than American slavery, but there was no system of legal racial apartheid in Brazil, after slavery was abolished, nor was there ever any stigma attached to racial inter-​marriage, unlike the situation in the United States. Today, 43 percent of Brazilians are of mixed black and white ancestry, and 7 percent are of pure African ancestry. These figures contrast sharply with those in the United States. In 1951, Brazil passed its first formal civil rights statute 40 Robert Cottrol, Brown and the Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts, 66 U. Pitt. L. Rev. 113 (2004).

The Federative Republic of Brazil  217 banning race discrimination, but it never adopted the system of affirmative action or of disparate impact analysis that the United States adopted in the 1960s and 1970s and especially in Griggs v. Duke Power Co., 401 US 424 (1971). As a result, Professor Cottrol argues that Brazil has not yet directly confronted and sought to reverse its legacy of slavery. This is starting to change as U.S.-​style affirmative action and disparate impact analysis is being introduced. As I mentioned above, “racism” is actually declared to be a crime in the Brazilian Constitution! Brazil has, however, a very long road to travel to correct the stunning inequalities of wealth between its white-​descended and its African-​ descended populations. Brazil is thus actively borrowing today U.S. techniques for combating racial discrimination. This is the case because the United States went through the period of formal Jim Crow second-​class citizenship for African Americans and because there was an anti-​miscegenation norm in the United States, which was sporadically followed, whereas there was never such a norm in Brazil. Brazil is thus both ahead of and behind the United States in dealing with the legacy of African slavery. A third important Brazilian Bill of Rights case was decided, in 2009. In this case, General Prosecutor of the Republic v.  National Congress and Governor of Rio de Janeiro v. State Courts and Rio de Janeiro Congress, Direct Action of Unconstitutionality number 4.277, 2009; Claim of Breach of Fundamental Precept no. 132, 2008—​Judgment in 2011, the STF held that same-​sex unions had to be recognized as stable unions under Brazilian anti-​discrimination law. The court found that discrimination against same-​sex couples was a form of sex discrimination that was unconstitutional. Brazilian same-​sex families had to be recognized at least as stable unions even if they were not recognized as families. This was a major advance in Brazilian constitutional law for same-​sex couples, even though it was not a total victory. Fourth, Brazil protects the right to freedom of expression less ardently than does the United States. Thus, Article 5 of the Brazilian Constitution provides as follows: Article 5.  All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms: *** The expression of thought is free, and anonymity is forbidden; The right of reply is ensured, in proportion to the offense, as well as compensation for property or moral damages or for damages to the image; *** No one shall be deprived of any rights by reasons of religious belief or philosophical or political conviction, unless he invokes it to exempt himself from a

218  the History and growth of Judicial Review, Volume 2 legal obligation required of all and refuses to perform an alternative obligation established by law; The expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license; The privacy, private life, honour and image of persons are inviolable, and the right to compensation for property or moral damages resulting from their violations is ensured; ***

Americans will notice that these clauses provide less protection for freedom of speech and of the press than does the U.S. First Amendment. The U.S. Supreme Court has held it is unconstitutional to require a right of reply in the print media because it burdens speech and, as a policy matter, the right to reply has been dropped in cases involving broadcasting and the internet. Also, New York Times v. Sullivan, a landmark U.S. First Amendment case and one of the best rulings ever of the U.S. Supreme Court, prevents public officials and even public figures or celebrities from suing for libel unless they can show “actual malice” on the part of the person criticizing them. This is almost impossible to do. U.S. freedom of expression constitutional law is thus substantially broader than is the case in Brazil. There is, however, a very pro-​freedom of expression Brazilian case, which is called The “Marijuana March” Cases, Direct Action of Unconstitutionality 4274 and Fundamental Precept Non-​Compliance Claim 187 and Direct Action of Unconstitutionality 4274. The use of marijuana is illegal in Brazil, and it is also a crime to incite the practice of marijuana use. The Brazilian Supreme Court considered whether the holding of public marches to call for the legalization of marijuana could be criminally punished as incitement to commit a crime. The Supreme Federal Tribunal struck down the Criminal Code insofar as it prohibited these peaceful marches saying the prohibition violated both the legal rights to thought and to public assembly. These cases became landmark cases in Brazilian freedom of expression law and led to a public culture whereby expression of ideas is frequently accomplished through peaceful marches. This is a landmark ruling that has had major consequences in protecting freedom of expression in Brazil. Demonstrating against a law is no longer treated as incitement to commit a crime but is instead constitutionally protected freedom of expression. A fifth important Brazilian Bill of Rights case is Siegfried Ellwander v. Superior Court of Justice, Habeas Corpus 82.424 (2003). In this case, the Brazilian Supreme Federal Tribunal heard a challenge by a Holocaust denier whose speech had led him to be prosecuted for the constitutionally created crime of racism. Justice Mauricio Correa held in the majority opinion that the Jews are a race of people, as well as being a religious group, and thus he easily found Ellwander to

The Federative Republic of Brazil  219 be guilty of the Constitutional Crime of Racism. Justice Correa noted that Adolf Hitler had acted on the belief that the Jews were a race of people and not merely a religion. Justice Gilmar Mendes noted in his concurrence that because the crime of racism is in the Brazilian Constitution, along with protection for freedom of expression, racist expression could be punished because the cornerstone right of the Brazilian Constitution is human dignity, as in Continental Europe, and not freedom of expression, as in the United States. Justice Moreira Alves dissented, arguing that Jewish authors themselves define Judaism as being a religion and not a race. Justice Ayres Britto dissented, claiming that Judaism was at most a political ideology protected by the Constitution. All the justices agreed that since the Constitution itself outlaws hate speech, such speech is not constitutionally protected in the way it is in the United States.41 The Brazilian Constitution emphatically protects freedom of religion and the free exercise of religion in the following clauses: Article 5: Section VI-​freedom of conscience and belief is inviolable, the free exercise of religious cults being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed. Section VII-​under the terms of the law, the rendering of religious assistance in civil and military establishments of collective confinement is ensured; Section VIII-​[N]‌o one shall be deprived of any rights by reason of any religious belief or philosophical or political conviction, unless he invokes it to exempt himself from a legal obligation required of all and refuses to perform an alternative obligation established by law; *** Art. 19. It is forbidden to the Union, the States, and the Federal District and the Counties: I-​to establish religious practices or churches, subsidize them, hinder their operation or maintain with their representatives relations of dependence or alliance, except as set forth in the law, cases of collaboration in the public interests.

Brazil has the largest Roman Catholic community in the world as well as an evangelical Protestant community constituting about 20 percent of the population. Brazil is famous for its Christ the Redeemer statue in Rio de Janeiro, and many cities and some states are named after Christian Saints. There are, however, two minor religion cases that the Brazilian courts have decided: the first was a failed effort by the federal prosecutors in the states of São Paulo to take the phrase “God be praised” off of the Brazilian currency; and the second failed case



41

Virginia v. Black, 538 U.S. 343 (2003); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

220  the History and growth of Judicial Review, Volume 2 was a challenge in Rio Grande do Sul to the presence of crucifixes on classroom walls. The justices said this was cultural and not religious speech by the state. A sixth important Brazilian Supreme Federal Tribunal Bill of Rights decision arose in an important and controversial religion case in recent years: Jewish Center for Religious Education v. the Union, Suspension of Provisionary order number 389 (2009). The Brazilian National government is responsible for organizing an annual national exam (ENEM) for high school students, which most private and public universities use as an admissions exam for undergraduate courses. The ENEM is usually taken on a single day. Students must be physically present in public facilities to take the exam. The Jewish Center for Religious Freedom and twenty-​two high school students petitioned the lower courts, seeking an alternative date to the national exam, which would not coincide with the Jewish Shabbat or any other Jewish religious holiday. The Federal Court of the 3rd Region upheld the challenge, and the Union national government then appealed to the Supreme Federal Tribunal. Justice Gilmar Mendes noted that the Brazilian Constitution itself did not create a Jeffersonian Wall between church and state and that the Constitution obligates the government to make religions tax exempt, and to subsidize hospitalization in religious hospitals. He saw this case as posing for him a very vexing conflict between the free exercise of religion and the constitutional principle that all people be treated alike. He noted that the Ministry of Education would allow Shabbat followers to take the exam at night during the day of rest, a solution that had been accepted by Seventh Day Adventists. Justice Mendes noted that “It is possible to argue that the measure adopted by the Ministry of Education would harm only those candidates who profess these religions, who would have to be confined and who only at the end of the day would start their exams.” He thus ruled for the government in this case over the dissent of Justice Marcus Aurelio. I think this decision is clearly wrong on equality grounds as well as free exercise of religion grounds. To confine Jews and Seventh Day Adventists all day on their Sabbath and then expect them to start writing a make-​or-​break exam for their future careers at sunset when they will naturally by tired is to discriminate against them on the basis of religion. I disagree adamantly with this case and note it would certainly come out differently in the United States or Germany as well as in many other constitutional democracies. In a seventh important Brazilian Bill of Rights case, the Supreme Federal Tribunal upheld a search and seizure privacy claim in Brazil:  Privacy of Correspondence and of Telegraphic Data and Telephone Communications. Antonio Osorio Ribeiro Lopes Da Costa v. Parliamentary Commission of Inquiry, Writ of mandamus number 23.851-​0 (2001). The petitioners in this case sought judicial review of an order from a Parliamentary Commission of Inquiry seeking access to his banking, tax, and telephone records. The Supreme Federal Tribunal held

The Federative Republic of Brazil  221 that the Parliamentary Commissions did have the power to obtain such records where there are “concrete facts that [amount] to probable cause making the need for disclosure explicit.” This is the same test that applies to the Brazilian courts before they can have access to such personal information. The only reason the Parliamentary Commission advanced to justify its search was that the defendant was a member of the board of directors of an association that was being investigated by the commission. The court held that the Parliamentary Commission would need much more evidence of individual wrongdoing before it could search the defendant’s banking, tax, and telephone records. The court said the Constitution of Brazil does not allow for legislative fishing expeditions of the type attempted here. James Otis, the American Revolutionary leader who led the protests against the British government’s general search warrants would have been so proud of this Brazilian court decision! An eighth important Brazilian Bill of Rights case concerned how active the Supreme Federal Tribunal should be in the protection of property rights. This is illustrated by the case of Maria Terezinha Oriente Rodriguez de Moraes v. President of the Republic, Writ of mandamus number 21.193 (1996). In Brazil, a federal agency (the National Institution for Colonization and Agrarian Reform, or INCRA) is responsible for determining takings of agrarian land defined as being of social interest for the end of promoting agrarian land reform. In this writ of security, the president of the Republic determined in 1994 through a presidential decree that the rural estate owned by Maria Terezinha was not of social interest, and he would not allow its future taking by INCRA. Maria Terezinha petitioned for a writ of mandamus from the Supreme Federal Tribunal claiming that her use of her land met the measures of efficiency necessary to avoid its classification as being of social interest, which INCRA had sought since 1990. She argued that, after 1990, her property was occupied by people who did not own rural property (sem terra or landless in a literal translation) and that all attempts by the judiciary to seize her land had failed up to the moment of the presidential decree. According to the petitioner, rural land cannot be unilaterally declared unproductive by the federal government in order to pursue a policy of land reform when the land is occupied by third parties that forbid the owner from farming or mining it. Maria Terezinha argued that her property rights under the Brazilian government had been denied. Justice Mauricio Correa, writing for Justices Marco Aurelio, Celso de Mello, Octavio Gallotti, Sydeny Sanches, Neri da Silveira, and Morea Alves, ruled for the petitioner Maria Terezinha and against the government. The court noted the government had failed to follow a law giving petitioner notice that her land might be declared subject to land reform; that the presence of 178 landless families made it impossible for petitioner to put the land to its agrarian use as she wished

222  the History and growth of Judicial Review, Volume 2 to do; and that the government’s allowance of these landless peoples to stay on petitioner’s land was a violation of her rights. All in all, the case was a strong vindication of private property rights. One justice, Ilmar Galvao dissented. Brazil’s 1988 Constitution was written as a compromise document between the Left and the Right, and, as a result, a huge number of nationalized companies were owned by the Union government when the Constitution went into effect. Many of these nationalist monopolized companies were privatized in the 1990s by conservative Presidents Collor de Mello and Fernando Henrique Cardoso. The Left fought the privatizations in the courts and mostly lost.42 One ninth exceptional Bill of Rights case where the Left stopped a privatization effort was Brazilian Association of Distribution Companies v.  Brazilian Post, Fundamental Precept Non-​compliance Claim no.46 (2009). In this case, the Supreme Federal Tribunal heard a complaint that the Brazilian Post Office, which maintains a national monopoly over the provision of the postal service and the national airmail, as well as distributed newspapers, journals, and little packages, among other things, were harmed by the post office’s monopoly status in Brazil. The court upheld the monopoly status of the Brazilian Post Office with six justices in favor, one justice dissenting, and two justices concurring in part and dissenting in part. In an era of e-​mailing, texting, tweeting, Federal Express, and UPS, it does not make sense any more, economically, for governments to subside a public monopoly post office in my opinion. The Brazilian postal decision case was a major decision due to the fact that it tackled some important constitutional issues, especially the concept and scope of monopolies and privileges under the Constitution of Brazil. The decision was subject to criticism for having protected too widely the scope of the “postal privilege.” Note that in the United States, Federal Express, UPS, texts, tweets, and e-​mails all are allowed to compete with the post office monopoly. Besides the court’s expansive reading of the scope of the “postal privilege,” economists faulted the court for assuming that without a monopoly the post office would not survive. The decision shows the court’s inclination to treat public companies that act in public services with the same rules as the ones applied to the public power, which are the same rules as the ones relating to pledging its property. (Extraordinary Appeal 589025/​SPP), the special process of paying debts, originated from judicial decisions (Extraordinary Appeals number 225011, 20906, and 23051 and the application of tax immunities of article number 150, Section1, IV, da CF (Originary jurisdiction suit 1.226/​STF). The right to freedom of occupation is secured in Brazil by Article 5, XIII of the Constitution. In a tenth exceptional Bill of Rights case, Joao Antonio Volante



42

See Preliminary Injunction in Direct Action of Unconstitutionality, No. 562 (1991).

The Federative Republic of Brazil  223 v. Federal Council of Brazilian Bar Association and Others, Extraordinary Appeal Number 603583, the Supreme Federal Tribunal considered a freedom of occupation challenge to the constitutionality of the national bar exam. One is required to pass this exam in order to legally practice law in Brazil. Between 1997 and 2011, the number of law schools in Brazil had jumped from 200 to 1,100. Nonetheless, the Supreme Federal Tribunal applied proportionality review to the merits of the bar exam as it stood, and concluded that the current exam imposed only a proportional bar on occupational freedom given society’s interest in the quality and the known character of the country’s lawyers. The Brazilian Constitution protects the right to education in the following general language: Article 205. Education, [as the] right of all and [as the] duty of the State and of the family [to provide], will be promoted and encouraged with society’s collaboration, aiming [at] the full development of the people, their preparation to exercise their qualification for citizenship and their qualification for work. Article 206. Education will be based on the following principles: *** III-​pluralism of ideas and pedagogical conceptions, and coexistence of public and private educational institutions IV-​[access to a free] public education in official establishments. Article 207. Universities enjoy autonomy with respect to didactic, scientific and administrative matters, as well as autonomy in financial and patrimonial management, and shall comply with the principle of the inseparability of teaching, research, and extention.

In an eleventh exceptional Bill of Rights case, Public Prosecutors’ Office of the State of Rio de Janeiro v. State of Rio de Janeiro AgR, Extraordinary Appeal Number 594018 (RE 594.018) (2009), the Supreme Federal Tribunal held that the provision of education to children was a fundamental right of the child that could not be violated by “discretionary evaluations of the Administration, nor is [it] subject to [being overridden for] pure governmental pragmatic reasons.” The court declared that it was ready to enforce this affirmative right of the child, and it admonished the State of Rio de Janeiro for not echoing in its state laws the Article 205 fundamental right to a free public school education. In other Bill of Rights cases like, Direct Action of Unconstitutionality, 3330 (2012), the Supreme Federal Tribunal held that poor students must receive adequate scholarships from the state to attend private schools; and, in Federal University of Goias v. Marcos Lopes Alves and Others, Extraordinary Appeal (RE 500.171. (2008), a federal university tried to illegally charge tuition to a student

224  the History and growth of Judicial Review, Volume 2 who should have received a scholarship. The Supreme Federal Tribunal ordered it to immediately stop doing so, since in Brazil all public education is free. Healthcare in Brazil is offered without charge at public hospitals, labs, and other facilities, all within the Unified Healthcare System (SUS), which encompasses all federative levels. SUS has a list of medications (all approved by the National Health Surveillance Agency (ANVISA)) to which people have free access if they get a prescription from a doctor in the system. As there are many people asking for health care and severe coordination problems among the three levels of the Brazilian federation (municipal, state, and federal), there are plenty of cases in which cities and states refuse to give the medication patients request, arguing that people should ask for such services from the Union government. In both of the appeals below, the state of Santa Catarina and the City of Porto Alegre, respectively, argued that the duty of providing drugs to the plaintiff must be a duty of the federal government, and not only a duty of the states and municipalities. In general, they argue that the judicial power cannot interfere with a public policy that is being conducted by executive and legislative powers, and that by deciding the case and granting the medication to the plaintiff, the judiciary would be taking away the same medication from another person. They also mentioned the nonexistence of budgetary provisions and the lack of funds. Consider, here, the following articles from the 1988 Constitution: Article 196. Healthcare is a right of everyone and a duty of the State, guaranteed through public policies, social and economic, that aim at the reduction of the risk of diseases and at the universal and egalitarian access to actions and services to health promotion, protection and recovery.*** Article 198. Public actions and services in healthcare integrate a hierarchical and regionalized network and constitutes a unified system, organized in accordance with the following directives: *** II-​ Full service, with priority to preventive activities, without loss of treatment services *** Section 1. The unified health system shall be financed, in the terms of article 195, with funds from the social security budget of the Union, States, Federal District, and Counties as well as from other sources.

In State of Santa Caterina v. Luciano Angelo Cardoso and Others, Extraordinary appeal 607.381 (2011), the Supreme Federal Tribunal held that the state of Santa Caterina had unconstitutionally denied the plaintiffs access to medicines to which they were constitutionally entitled. Similarly, in City of Porto Alegre v. Dina Rosa Vieira, the Supreme Federal Tribunal held that the plaintiff was constitutionally entitled to a very expensive but effective anti-​HIV/​AIDS medicine.

The Federative Republic of Brazil  225 There is no question but that the Brazilian courts have been vigorously enforcing access by all litigants who appear before them to high-​quality healthcare. The problem is, however, that as Octavio Luiz Motta Ferraz argues in "Social and Economic Rights:  Harming the Poor Through Social Rights Legislation: Lessons from Brazil,”:43 My main contentions are these: (1) when pushed to enforce some social rights assertively, courts have a tendency (and an incentive) to misinterpret these rights in an absolutist manner; (2) such interpretation unduly favors litigants (often a privileged minority) over the rest of the population; (3) given that state resources are necessarily limited, litigation is likely to produce state reallocation from comprehensive programs aimed at the general population to these privileged litigating minorities; and (4)  contrary to the contention of some scholars, enhancing access to courts would not solve the problem.

Professor Ferraz then discusses a case involving Joao Batista Goncalvez, who suffered from a rare form of muscular dystrophy, which is eventually fatal, but which could be treated in the United States for $63,806, “about twenty times Brazil’s nominal GDP per capita.” The Supreme Federal Tribunal ordered the government to pay for this treatment out of its general healthcare budget, to the detriment of many other Brazilians. Professor Ferraz concludes that: It is not difficult to guess who benefits from this sort of litigation. It would be highly surprising if those families at the bottom of society, where living conditions are worst and health care needs greatest (where basic sanitation is not available and infant mortality is highest), were litigating for these high-​ tech, state-​of-​the-​art drugs, procedures, and equipment. As expected, there is instead a high concentration of right-​to-​health litigation in the richest states, cities, and districts of Brazil. ***”

There seems to be a strong consensus that judicial enforcement of positive social and economic rights provisions is at best a very complex process, and many poorer countries may do better by making such rights non-​justiciable, thus getting the courts out of an arena for which they are not very well-​suited. The Supreme Federal Tribunal has found that while there is sometimes a state action doctrine in Brazil such that some constitutional rights apply only to protect the individual from the state, there are times when constitutional guarantees apply horizontally, binding one private party versus another private party.

43 Octavio Luiz Motta Ferraz, Social and Economic Rights: Harming the Poor Through Social Rights Legislation: Lessons from Brazil, 59 Texas L. Rev. 1643 (2011).

226  the History and growth of Judicial Review, Volume 2 Thus, in Uniao Brasileira de Compositories UBC v. Arthur Rodrigues Vilarinho, Extraordinary Appeal number 201.819/​RJ: (2005), the Supreme Federal Tribunal held that the Brazilian Union of Composers, a nonprofit institution had violated the constitutional due process rights of one of its members by excluding the plaintiff from its board of members without giving the plaintiff an opportunity to defend himself or to produce evidence in his favor. This case shows that just as the U.S. Supreme Court has on occasion disregarded the state action doctrine, so too has the Supreme Federal Tribunal done the same thing.44 The Supreme Federal Tribunal has also heard several cases involving constitutional guarantees of democracy or “a republican form of government” as the U.S. Constitution refers to it. Thus, as we saw in Governor of Rio Grande do Sol v. National Congress, Direct Action of Unconstitutionality number 815 (1996) the Court held the violation of the principle of one person, one vote made by the Brazilian Constitution itself, such that none of the units of the federation has less than eight or more than seventy deputies, was non-​justiciable because the discrimination is made by the Constitution itself. In The Progressive Party and the Democratic Labor Party v.  Superior Electoral Court, Direct Action of Unconstitutionality number 3345 (2005), the Supreme Federal Tribunal insisted on the strictest possible adherence to the principle of proportional representation possible for municipalities even though proportional representation has many flaws, and it is not at all clear that it is required by the Constitution of Brazil. The Supreme Federal Tribunal upheld almost all of a major campaign finance reform law in Social Christian Party, Democratic Labor Party, Christian Labor Party v.  President of the Republic and National Congress, Direct Action of Unconstitutionality number 3741-​2 (2006). The approved law included new rules for political advertisements, funding, and accountability of expenditures for electoral campaigns. The only portion of this campaign finance law, which the Supreme Federal Tribunal held was unconstitutional was Article 35-​A, which prohibited the publication of electoral polls fifteen days before an election. The Supreme Federal Tribunal saw this as raising freedom of information and expression guarantees. In Brazilian Association of Radio and Television Broadcasting Companies v.  National Congress and the President of the Republic, Direct Action of Unconstitutionality number 4451 (2010), the Supreme Federal Trribunal expressed skepticism about and curtailed somewhat regulations of the campaign process that might have precluded parodies or political satires, while allowing more regulation of radio and broadcasting than of the print media. Ultimately, the court suspended these regulations while saying that propaganda was not 44 See Shelley v. Kraemer, 334 US 1 (1948); New York Times Co. v. United States, 403 U.S. 713 (1971).

The Federative Republic of Brazil  227 constitutionally protected. It is thus fair to say the Brazilian Supreme Federal Tribunal has heard and decided cases involving campaign finance laws. In Preliminary Injunction in Direct Action of Unconstitutionality 4467 (2010), the Supreme Federal Tribunal held that voters could be required to bring a photographic official identification document with them to be eligible to vote; it would be unreasonable to also require them to bring a second identification document showing they were registered to vote, especially since the names of those registered to vote are known by the officials at the voting booths. This decision seems eminently reasonable and correct. The Supreme Federal Tribunal issued its most important and landmark opinion on voting rights and election law in Five Percent Electoral Threshold Case, Brazilian Communist Party and Others v.  National Congress and the President of the Republic, Direct Action of Unconstitutionality numbers 1351 and 1354 (2007). In this case, a statute had been passed, which established that only parties that received 5 percent of the vote or more would be represented in the National Chamber of Deputies, the lower house of Brazil’s bicameral legislature. (The Federal Senate is composed of three members from each of Brazil’s twenty-​ six states and three from the Federal District as well.) The 2006 national election had produced twenty-​nine parties of which twenty-​two would have been eliminated by a 5 percent electoral threshold. The Supreme Federal Tribunal unanimously struck down the 5  percent threshold statute saying that Congress had tried to accomplish the same result by amending the Constitution in 1994, which for Justice Marco Aurelio simply proved that even the political branches of the government in Brazil knew that absolute proportional representation was constitutionally required. The court noted the huge number of voters who had collectively voted for the twenty-​two political parties that would have been eliminated by the 5 percent threshold. In fact, it would have been highly desirable for Brazil to have a 5 percent threshold for representation in its Chamber of Deputies. This decision is thus, in my opinion, a tragedy. As we have seen in earlier chapters of this two volume book series, proportional representation led to catastrophe in the Weimar Republic, in Italy prior to 1991, in France under the Third and Fourth Republics, and in Israel today. Proportional representation in Brazil is that countries’ biggest constitutional flaw, in my opinion. Former Yale Political Scientist Juan Linz once wrote that the worst possible democratic system of government is one that combines, as Brazil’s does, a presidential separation of powers system with proportional representation in the lower house of the legislature. Linz notes that in the U.S. presidential system, our two-​party system means that the president must confront and compromise on a regular basis with the Democratic and Republican leaders of the U.S. Senate and the House of Representatives. This greatly checks and balances U.S. presidential

228  the History and growth of Judicial Review, Volume 2 power, especially because every two years there is a midterm election in which all 435 seats in the House of Representatives, one-​third of the seats in the Senate, and 37 state governors and state legislatures are elected. Since the party out of power always wins the midterm elections, presidential power is hugely constrained. In Brazil, however, the president does not need to consult as seriously with legislative leaders because power is fractured among more than twenty parties and not just two. In practice, this leads in Brazil to a form of hyper-​presidentialism where the president can do almost anything he wants to do. This is a huge problem created by Brazil’s electoral laws. In contrast, when Brazil conducts a presidential election, it holds a primary election in which dozens compete, but there is then a runoff election between the top two vote getters in the primary presidential election, with the winner going to the one of the two candidates who gets 51 percent of the vote in the second round election. In practice, this system has produced in Brazil, as it did in France after 1958, a two-​party system for presidential elections only whereby usually a moderate left and a moderate right candidate compete to get to 51 percent of the vote. The recent election in 2018 of extremist Jair Bolsonaro to the presidency is an exception to this rule. This proves that there is nothing endemic to Brazil that condemns it to have a chaotic twenty-​seven-​party system, which renders the legislature impotent, thereby making Brazil a plebiscitarian, Caesaristic polity ruled by an all-​powerful president. What Brazil needs to do to restore power to its Chamber of Deputies is simply to create geographic districts for the chamber with a first-​past-​the-​post-​ electoral system. This is best done as in the French Fiffth Republic by having a two-​stage primary and general election in each territorial district with the top two vote getters in the primary running off against each other with 51 percent needed to win a seat. Such an electoral system would produce a two-​party system in the Chamber of Deputies, which could then much more effectively counterbalance presidential power. So what do all of these Brazilian Bill of Rights cases tell us? They tell us that Brazil today has almost as active a system of judicial review as does Germany.

IV.  Origins of Judicial Review in Brazil It is clear from the discussion of Brazil’s case law that Brazil today has a very active system of judicial review. It is also clear from my discussion of Brazil’s history and of the major institutions of its government why Brazil’s very active system of judicial review originated and grew. First, Judicial review in Brazil originated because it was borrowed from the U.S. Constitution. It emerged in amplified form in Brazil’s 1988 Constitution

The Federative Republic of Brazil  229 because, by 1988, the normative appeal of judicial review was widely appreciated all over the world. The Hybrid Model of judicial review in Brazil, whereby the SFT is in part both the apex of a diffuse system of judicial review and a Constitutional Court, reflects the widespread appreciation people had in the 1980s, and still have today, for the value of the German Constitutional Court in a civil law jurisdiction. The power of such a court to issue rulings with erga omnes effect is especially important in civil law countries like Brazil, which lack systems of stare decisis. Brazilian judicial review is thus borrowed from both the United States and from Germany. A second cause of the emergence of judicial review in Brazil as a result of the 1988 Constitution is that the Bill of Rights and judicial review by a Hybrid Diffuse Kelsenian Court is a rights from wrongs reaction to the killing, torturing, and imprisoning of political prisoners during the twenty years of the military dictatorship. As Alan Dershowitz explains in Rights from Wrongs:  A Secular Theory of the Origins of Rights,45 as a historical matter, all of the rights that our constitutions and statutes protect against emerged in the first instance as a response to a great wrong. This is precisely what seems to have happened in Brazil after 1988. A third cause of the origins of judicial review in Brazil after 1988 was that Brazil had both a need for a separation of powers umpire and for a federalism umpire. The Brazilian Constitution divides and allocates power among a lot of institutions. The Supreme Federal Tribunal’s power is thus enhanced by the fact it needs to umpire boundary line separation of powers and federalism cases. A fourth cause of the growth of judicial review in Brazil is that the fragmentation of power the 1988 Constitution creates among the president, the Senate, the Chamber of Deputies, and the states gives the Supreme Federal Triibunal the political space in which it can exercise power. This is especially true because Brazil’s use of proportional representation with no electoral threshold has led to there being more than 25 political parties in the legislature. Unlike the Supreme Court of Japan, the Supreme Federal Tribunal does not face a unitary nation-​state led by an executive prime minister who has two-​thirds of both houses of the legislature behind him. This gives the Supreme Federal Tribunal important running room. Moreover, proportional representation in Brazil, as in Israel, and perhaps Germany, splinters any democratic opposition that might otherwise emerge in the National Congress. Fifth, judicial review in Brazil may have emerged, as Ran Hirschl would predict, because the constitution-​writing elite wanted to entrench its liberal and socialist values to forestall the emergence of yet another military government in 45 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005).

230  the History and growth of Judicial Review, Volume 2 the country. Given the Brazilian experience with Fascism during the 1930s and 1940’s, Brazilian liberals and democratic socialists had good reason to want to entrench their values in the 1988 Constitution. Thirty-​two years later, we can say that they succeeded in doing so. Sixth, and finally, Brazilian judicial review may have emerged and grown in power because two evenly balanced parties at the presidential level, one on the right and the other on the left, wanted insurance and commitment, as posited by Professor Tom Ginsburg. Brazil does have two evenly matched parties for its presidential elections, thanks to the 51 percent runoff requirement, but Brazil has a chaotic multiparty system in its legislature, thanks to its use of an extreme form of proportional representation. Professor Ginsburg’s theory of the origins of judicial review does not apply completely to the case of Brazil because of proportional representation in the legislature which leads to there being more than 25 political parties represented there. There are not, as he posits, two roughly co-​ equal political parties, which want to engage in insurance and pre-​commitment. As the cases summarized in this chapter demonstrate vividly, Brazil has a very vigorous system of judicial review with a very active Supreme Court that has for nearly thirty years policed and protected many constitutional rights. By any standard of measurement, Brazilian judicial review has been a huge success story! There are thus many different causes of the emergence and growth of judicial review in Germany, just as there are in the United States and Germany as well.

Chapter Nine Mexico

Mexico has a population of over 113 million people, making it the most populous Spanish-​speaking country in the world, and the second most populous country in Latin America after Brazil. Mexico is a federation of thirty-​one states and a Federal District, and its Constitution provides for a U.S.-​style separation of powers and a federal structure. Mexico is considered to be a newly industrialized country and an emerging economic power. Its economy has benefited hugely from its inclusion, first in the North America Free Trade Agreement (NAFTA), and now in the United States-​Mexico-​Canada Trade Agreement (NAFTA 2.0), along with the United States and Canada. Mexican constitutionalism is briefly discussed in Angel R. Oquendo, Latin American Law and much more broadly discussed in Jose Maria Serna de la Gaza, The Constitution of Mexico, and on Steven Gow Calabresi, et al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials (Foundation Press 2016) on which I principally rely here.1 Mexico is, of course, a G-​20 nation. I will discuss in this chapter a brief history of modern Mexico, the reasons for the origination of independent judicial review of the constitutionality of legislation, and I will then document the growth and vigor of Mexican judicial review over the last twenty years. I discuss the origins of judicial review before discussing the Supreme Court’s case law because judicial review in Mexico is a very recent development. I seek to prove by discussing the cases that Mexican judicial review has become very active.

I.  A Brief History of Mexico and Its Courts The geographical area that we call Mexico was once the seat of the Mayan Empire and then of the Aztec Empire. Unlike Brazil, Europeans arriving in Mexico encountered a very large and advanced culture in the form of the Aztec Empire. Spain began its conquest of this empire in 1519, and the Spaniards brought with

1 Angel R. Oquendo, Latin American Law 133–​42 (2006); Maria Serna de la Garza, The Constitution of Mexico:  A Contextual Analysis (2013); and Jürgen  Buchenau, Mexican Mosaic: A Brief History of Mexico (2008).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0010

232  the History and growth of Judicial Review, Volume 2 them the smallpox, which decimated the Native American people. There were probably between eight and twelve million Native Americans in Mexico when the Spanish conquered it. Tragically, only about one million indigenous people survived both the small pox and the Spanish conquest. That conquest led to a horrible loss of indigenous peoples’ lives. In 1535, the Spanish declared Mexico to be New Spain. The colonial era began in 1521. In 1535, the Spanish appointed a viceroy to rule their colony for them. The population was about one million indigenous people, five hundred thousand Europeans mostly from Spain, two hundred thousand enslaved Africans, and forty thousand people of Asian ancestry. Unsurprisingly, the mestizo population increased with every passing year. An unknown number of the European immigrants to Mexico were Jews escaping the Spanish Inquisition. In the sixteenth century, Mexico had a printing shop, a university, and a public park. In the seventeenth century, a public library was set up. By the eighteenth century, Mexican society was very advanced. The Catholic Church had a huge impact on Mexico during the colonial period. Mexican cuisine emerged during the eighteenth century. The motivations that led the Spanish to settle in Mexico in the 1500s and 1600s were very different from the religious motivations of those Englishmen who founded the New England colonies of Plymouth, Massachusetts Bay, Hartford, Connecticut, New Haven, Connecticut, New Hampshire, and Newark, New Jersey. As we saw in the prior Chapter on Brazil, the Englishmen who founded those colonies were Puritans who had rejected the Established Church of England, which is today the Episcopal Church in the United States. Whole families emigrated to New England and not just single men seeking good fortune and adventure. The New Englanders did not inter-​marry with Native Americans or with their small numbers of African slaves. John Winthrop proclaimed that New England would be “a city on a hill” to the corrupt Christian world of Europe. It would symbolize true Christianity put into practice. New England was a paradigm of American Exceptionalism from the start.” The American Revolution –​ with its proclamation of a Novus Ordo Seclorum (A New Order of the Ages), and its written democratically adopted Constitution and Bill of Rights was American Exceptionalist from the Spirit of 1776 on. The motivations of those Spanish men, and they were mostly men, who settled in Mexico were not religious or ideological. These men were out to make money and in particular to hunt for silver, gold, and other precious objects that would make them rich. From the beginning, Mexican men intermarried with Native American and African American women who were slaves producing a large progeny of mixed racial descendants. Mexico, like Brazil, was not founded to be as Ronald Reagan embellished John Winthrop’s language “A Shining City on a Hill.” There was no founding ideological or religious crusade. Mexicans and

Mexico  233 Spaniards were equally Catholic, although the more Spanish your ancestry was, the higher was your social status. The Mexican states differed little from one another, although the many high mountains and deep valleys of Mexico led to cultural differences among the all Catholic Mexican states. The Spanish colonies were governed by Mexican Governors with little popular input. The thirteen North American colonies in 1776, in contrast, were each, themselves, vibrant democratic regimes. Given these radically different colonial experiences of 169  years of democratic self-​ government in North America and monarchy in Mexico, it should surprise no-​ one that the United States from 1789 to 2020 has had a written constitution and Bill of Rights with constitutional democracy being the nature of the U.S. regime. Mexico, in contrast, was for most of its history a presidential dictatorship with one tyrant succeeding another periodically. The Mexican states, which were all Catholic had little power whereas the 13 United States, each with its own religious tradition, was a vibrant federation from the start. The country that we today call Mexico was still, in 1787, at the dawn of the era of written constitutions and independent judicial review, a colony called New Spain, which was part of the Spanish Empire. The history we provide here of it is drawn from de la Garza’s book, The Constitution of Mexico: A Contextual Analysis; and from Jürgen Buchenau, Mexican Mosaic: A Brief History of Mexico (2008). De la Garza estimates that the population of Mexico at the time of independence included a purely Spanish elite; an indigenous population that was about 40 percent of the total population in 1820; and a population of mestizos who had some combination of European, Native American, or African ancestry.2 In 1808, Napoleon, the emperor of France, temporarily replaced the king of Spain, and efforts to obtain independence for Mexico began in September 1810. Mexican independence was achieved in 1821.3 A democratic Constitution was adopted in 1824, but it was subverted by conservative oligarchs. Mexicans fought over whether their new country was going to have an emperor or whether it was going to be a republic. De la Garza says that the subversion of Mexico by conservative oligarchs became formal with the adoption of the so-​called Seven Constitutional Laws (Siete Leges) in 1936. These laws created a façade of democracy, but conservative oligarchs really held all the power.4 Unfortunately, Mexico had not had the long history of colonial democratic self-​ governance under written and judicially enforced colonial charters which the thirteen British North American colonies had experienced prior to 1776. As a result, Mexican independence from Spain did not lead to the creation of a real democracy.

2

De la Garza, supra note 1, at 3–​4.

4

Id., at 37–54.

3 Buchenau, supra note 1, at 37–44.

234  the History and growth of Judicial Review, Volume 2 Throughout the nineteenth century, various groups of dictators or oligarchs controlled all of the government institutions, including the courts. Liberals who favored federalism and disliked the Catholic Church fought with conservatives who wanted a centralized government with a strong Catholic Church. Noteworthy events during this period include:  (1) Mexico’s loss of a vast amount of territory to the United States in the 1846–​1848 Mexican-​American War; (2) the dictatorship of General Santa Anna in 1853; (3) a brief effort by the French Emperor Napoleon III to impose a monarch on Mexico, which monarch was tried, sentenced to death, and shot dead; (4) the thirty-​year dictatorship of General Porfirio Diaz, which began in 1877; (5) the overthrow of Diaz in the Mexican Revolution of 1911; (6) the adoption of the Constitution of 1917, which remains in force in Mexico today; and (7) the rise to power of the Institutional Revolutionary Party or PRI in 1929 (Partido Revolucionario Institutional), an oligarchic party, which won all presidential elections held from 1929 through 1994, and which created a façade of democracy and constitutionalism with a reality of strong presidents and oligarchic control.5 Mexico thus had a popularly elected authoritarian regime until July 2000, in which a single party, the Institutional Revolutionary Party (PRI), always won both the presidency and a two-​thirds majority in both houses of the legislature. This allowed the PRI to amend the Mexican Constitution at will so as to entrench its power, which the PRI did, in fact, do. The PRI’s loss of power in the presidential election of 2000 ushered in the possibility of constitutional, democratic reforms, but the country has been victimized since 2006 by a war with drug kingpins in which sixty thousand people have died. Some people thus think it may be premature to call Mexico a stable constitutional democracy with independent judicial review. De la Garza identifies and discusses in ­chapter 1 of his book six fundamental constitutional principles that emerged during the period from Mexican independence in 1821 up through the election of a PRI president in 1994. These constitutional principles include the following:  (1) democracy, (2)  republicanism and the rejection of monarchy, (3) federalism, (4) a belief in fundamental rights, (5) a strict separation of state and church similar to that in France, and (6) the nation’s ownership and total control over all mineral resources.6 These principles all were deeply rooted in Mexican history and tradition, but the reality until recently was oligarchic and presidential control. Prior to the July 2000 presidential election, Mexico’s PRI-​dominated government “was characterized by a strong presidencialismo, a strong dominance of the president over other branches of government, which derived from sources beyond

5

6

De la Garza, supra Note 1, at 1–​19; Buchenau, supra note 1, at 37–​129. Id.

Mexico  235 the constitution.”7 Mexican presidents during this period were also the heads of the PRI, which had a two-​thirds majority in both houses and could (and did) amend the Constitution at will to clamp down on the Supreme Court or any other social or political institution that strayed from the political line. The Constitution was amended over four hundred times.8 Courts during this period, including the Supreme Court of Mexico, were simply extensions of presidential, absolute rule. Mexican courts, before 2000, could protect citizens from small-​scale bureaucratic misconduct through so-​called amparo proceedings, but they were powerless, as Beatriz Magaloni explains, in challenging the one-​party political regime. “[E]‌very single president from 1934 to 1994 was able to shape the composition of at least 50 percent of the [Supreme] Court,” thus completely dominating that body.9 Expropriations of private property were common, as was torture and the use of coerced confessions as evidence in court.10 As Magaloni explains, “after a large number of politicians from different political parties acceded to office at the subnational level in the 1990s, the president’s authority was challenged, generating the need to empower the Supreme Court.”11 After the July 2000 election victory of the opposition conservative PAN party, “[t]‌he Supreme Court of Mexico became the new arbiter of political conflicts once the president could no longer serve this role.”12 Mexico has been an emerging constitutional democracy since July 2000, but since then, the PRI regained the presidency for one term, and a left-​wing coalition candidate was elected to be the current president of Mexico. Mexico appears to have a vibrant three-​party system. Unfortunately, the drug war in Mexico has left the whole regime very unstable. Mexico does not yet clearly have stable moderate left and moderate right parties that are in the habit of alternating in office. But, then at the moment, Germany faces the same predicament.

II.  The Origins of Independent Judicial Review in Mexico Mexico’s judiciary has been influenced both by the civil law tradition, with its low regard for the importance of judges, and by the U.S. Constitution, which Mexico’s Constitutions have formally emulated.13 Mexico has a dual system of state and federal courts, like the United States, presided over at the top by the 7 Beatriz Magaloni, Enforcing the Autocratic Political Order and the Role of Courts: The Case of Mexico, in Rule by Law: The Politics of Courts in Authoritarian Regimes 180, 183 (Tom Ginsburg & Tamir Moustafa eds., 2008). 8 Id. at 184. 9 Id. at 187. 10 Id. at 191, 193. 11 Id. at 182. 12 Id. at 201; see generally Beatriz Magaloni, Voting for Autocracy:  Hegemonic Party Survival and its Demise in Mexico (2006). 13 Buchenau, supra note 1, at 47.

236  the History and growth of Judicial Review, Volume 2 Supreme Court of Justice,14 which also serves as a court of cassation. This dual system of federal and state courts resembles the U.S. system and differs from the unified federal court systems of Germany, Canada, and Australia. The Mexican Supreme Court of Justice was under the sway of dictators more or less continuously from 1882 to 1917, and then again from 1928 to 1944. In 1944, Mexican Supreme Court justices were given life tenure and since 1986, the court has been slowly recovering its autonomy, independence, and professionalization.15 The Supreme Court of Justice, today, consists of eleven justices appointed by two-​thirds of the Senate, after nomination by the president. Until recently, one political party, the PRI, usually controlled both the presidency and two-​thirds of both houses of the Mexican legislature, so judicial independence was by no means guaranteed. Mexico developed the idea that courts could issue binding jurisprudencia, which would have a stare decisis effect in Mexico’s civil law legal system once five cases on a subject had all been decided the same way. The Mexican Constitution of 1824 provided for both Spanish-​style legislative enforcement of the Constitution and for U.S.-​style judicial review. Legislative enforcement won out initially, according to De la Garza. Eventually, admiration for the pro-​judicial review writings of Alexis de Tocqueville led Mexicans to develop a unique device called the writ of amparo. This writ allowed the Mexican courts the power to review the constitutionality and legality of bureaucratic public acts. De la Garza describes the writ as being based on the premises that: (1) the judiciary had the power to defend the Constitution, (2) judicial intervention to defend the Constitution could only occur at the instigation of a person whose constitutional rights had been infringed, and (3) the eventual declaration of unconstitutionality benefited only the party who obtained it in a concrete case.16 The importance of the writ of amparo for most of Mexico’s history was severely undercut as a result of a very broadly conceived political question doctrine. In addition, litigants used the writ to get review in cassation in federal court of state court decisions, thus creating a backlog of cases. President Zedillo, in 1994, perhaps anticipating the forthcoming end to the PRI’s monopolization of Mexican politics, introduced and got passed a major constitutional reform. This reform transformed the Supreme Court of Mexico by giving it the powers and the role of being a Constitutional Court.17 This empowerment of the Supreme Court of Mexico coincided with, and was helped by, NAFTA. There were a number of specific elements of the reform. The number of Supreme Court justices was reduced from twenty-​six to eleven, the justices were

14

The Constitution of Mexico. De la Garza, supra note 1, at 104-​05. 16 Id. at 115. 17 Id. at 123. 15

Mexico  237 appointed for fifteen year fixed terms, with no possibility of reappointment; the justices were freed of most minor administrative obligations; the Supreme Court was strengthened by adding to its jurisdiction so that it could also exercise the powers of a Constitutional Court, and, accordingly, a new abstract method of challenging constitutionality was created whereby various institutional actors could launch constitutional cases in the Supreme Court.18 In addition, under Art. 105(II), when a law is so challenged, it can only be struck down by an eight-​vote supermajority of the eleven-​member Supreme Court. In a foundational case, lawmakers brought an action against provisions of a law permitting abortion under certain circumstances that was subject to Art. 105 (II). The 1994 reforms of the Mexican Supreme Court all work to give it almost as much power as the German Constitutional Court has. Judicial review in Mexico today is borrowed as much from Germany, as it is from the United States, which makes sense because Mexico is, like Germany, a civil law nation. Professor Eduardo Ferrer Mac-​Gregor, in “The Mexican Supreme Court as Positive Legislator,” in Allan R. Brewer-​Carias, Constitutional Courts as Positive Legislators: A Comparative Law Study,19 claims that the 1994 reforms essentially turned the Mexican Supreme Court into a full-​fledged Constitutional Court that also retained jurisdiction over diffuse judicial review cases.20 Today, the Mexican Supreme Court can hear: (1) abstract unconstitutionality causes of action, (2) constitutional controversies between state bodies, and (3) amparo proceedings. Failure to get eight out of eleven justices to hold a law unconstitutional results in the action being dismissed.21 Mexican judicial review is thus an example of the Hybrid Model of judicial review that I discussed in the prior chapter on Brazil. Mexican judicial review combines elements of Diffuse American-​style judicial review and of Concentrated German-​style judicial review. Mexico may be a case where judicial review emerged in part because the waning power of the PRI hegemonic elite caused it to want to entrench itself in the judiciary, as Professor Ran Hirschl might argue. This seems very unlikely given the Supreme Court’s left-​leaning case law. It could also be argued that the growth of judicial review in Mexico coincided with the emergence of a three-​party system. There could thus be some insurance and commitment going on, which would fit Professor Tom Ginsburg’s theory about the origins and growth of judicial review. I think the most plausible explanations of the origins of Mexican judicial review after 2000 are the following: (1) that it coincided with the rise of different 18 Id. at 125–​27. 19 Eduardo Ferrer Mac-​Gregor, The Mexican Supreme Court as Positive Legislator, in Allan R. Brewer-​Carias, Constitutional Courts as Positive Legislators:  A Comparative Law Study (2011). 20 Id. at 623. 21 Id. at 626.

238  the History and growth of Judicial Review, Volume 2 parties controlling the presidency, the two houses of Congress, and the state governorships and legislatures; (2) this created a real need for a constitutional umpire, which need was filled by the emergence of independent judicial review; and (3) that the Supreme Court of Mexico finally had some political space within which it could exert its power. In addition, I think that there is clearly a rights from wrongs element to the emergence of Mexican judicial review after the end of the brutal PRI dictatorship. All of these elements may have come together in the emergence, after 2000, of independent judicial review in Mexico. Notwithstanding these points, however, I cannot help but think that judicial review also emerged in Mexico, in 1994, in significant part because of borrowing from both the idea of a Hybrid Court from Brazil, and because the zeitgeist of the time favored judicial review. In general, the German Constitutional Court model has been successfully borrowed by South Korea, Brazil, South Africa, and Indonesia. In Mexico’s case, the Brazilian Supreme Federal Tribunal would have been an appealing role model because that court is simultaneously at the apex of a pyramid of diffuse judicial review and it has the powers of a Constitutional Court. The Supreme Court of Mexico is a Hybrid Court just like Brazil’s Supreme Federal Tribunal. Every other constitutional democracy that emerged from an authoritarian regime in the 1980s and 1990s was opting for judicial review, and that must have influenced Mexicans in 1994. I will now prove to you how robust the post-​1995 growth of Mexican judicial review has been. Anyone interested in reading English language translations of many of the cases discussed below can find them in Steven Gow Calabresi, et al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials (2016).

III.  The Post-​1995 Growth of Mexican Judicial Review A. Foundational Cases There are two foundational cases of the new and more aggressive form of independent judicial review in Mexico. In Representative of the Federal District Legislative Assembly v. Article 334(III), Penal Code & Article 131b of the Code of Criminal Procedure, the Mexican Supreme Court heard a challenge brought by a minority of the Federal District Legislative Assembly to a new law adopted in the Federal District. The Criminal Code in Mexico City had been amended in 2000 to allow an indication system to decriminalize abortion. The amendment decriminalized abortion in the following cases: (1) rape/​forced insemination (2) a grave threat to the woman’s health

Mexico  239 (3) when the fetus presents genetic or congenital alterations that might compromise its survival (4) when the abortion results from a negligent behavior of the pregnant woman. The amendment also affected the procedural code, as it granted the public prosecutor the possibility of ordering an abortion in the case of rape or forced insemination. In the Federal District today, abortion has been available on request to any woman up to twelve weeks into a pregnancy. A pro-​life constitutional challenge was brought to the decriminalization of abortion where there were genetic or congenital defects, and to the power granted to the public prosecutor to order an abortion in the case of rape or forced insemination. These aspects of the abortion decriminalization law were challenged in the Acción de Inconstitucionalidad 10/​2000. The court sustained the constitutionality of the first norm, and did not reach the qualified majority (8/​11) to hold the second norm unconstitutional. The abortion decriminalization ordinance remained valid. Today the criminal code decriminalizes abortion during the first twelve weeks of pregnancy. However, an indication system still covers those cases where an abortion takes place after the twelfth week. Unconstitutionality Action 10/​2000, XV G.S.J.F. 415 (Ninth Epoch, Plenum, Supreme Court (Mex.), Feb. 14, 2002. In Mexico, today, abortion is regulated at the state level, and some conservative states have defined a fetus as being a person in their state constitutions while in other states abortion is widely available. The 2002 decision is foundational because it opened the door to abortions in Mexico City, which has a population of more than 8.8 million people, and it upheld the constitutionality of liberalizing abortion, in the face of a long history of abortion having been illegal in Mexico and in all of Latin America. The decision is also a vivid illustration of the significance of the supermajority rule to finding laws unconstitutional in a very important case. The idea behind requiring a supermajority of the eleven justices to find a law unconstitutional was that enacted laws ought to enjoy a presumption of constitutionality. As I mentioned, the court upheld the legalization of abortion, but there was not a supermajority for the second part of the constitutional challenge, which was to empower the prosecutor the power to order an abortion in the case of rape or forced insemination. Thus, the entire abortion reform law was upheld and remained on the books. This case poses an interesting contrast with U.S. judicial review in two ways. First, an ordinary majority of the Supreme Court of Mexico can find a statute incompatible with the Constitution and still be unable to strike it down. When only a simple majority of the Mexican Supreme Court holds that a law is unconstitutional, it must instead dismiss the action. I wonder if this is a wise system? One problem with requiring a supermajority of the justices to find a law to be unconstitutional by a supermajority is that laws that six of the eleven justices think are unconstitutional

240  the History and growth of Judicial Review, Volume 2 remain valid because eight of the eleven are required to invalidate the law as being unconstitutional. Thus, a law survives a constitutional challenge even though a majority of the Supreme Court thinks the law in question is unconstitutional. This could cause the public to have doubts about the legitimacy of a law. Second, consider the question of standing raised in this case. A legislative minority of at least 33 percent has the automatic right to bring a constitutional challenge against a statute in Mexico. In this case the result was that a prosecutor could order that an abortion be done when there has been a rape. This seems gruesome and morally outrageous if the woman who has been raped does not want an abortion. Maybe, this was an issue the constitutionality of which should not have been resolved in the abstract? Some facts would surely seem to be relevant here. In any event, it comes as no surprise to an American who has grown up in the shadow cast by Roe v. Wade, 410 U.S. 113 (1973), that a foundational judicial review case in Mexico would concern the morally fraught and controversial topic of abortion. A second foundational Mexican Supreme Court case is Municipality of Rio Bravo v.  Governor of Tamaulipas et  al., Constitutional Controversy 19/​95, IV G.S.J.F. 249 (Ninth Epoch), Plenum, Supreme Court (Mex.), Oct. 1, 1996. In this case, the Mexican Supreme Court had to decide a lawsuit brought by the municipality of Rio Bravo, which challenged a provision of the Tamaulipas State Constitution on the ground that it violated the Mexican federal constitution by trampling upon municipal powers to regulate the public safety and traffic. The court ruled in favor of the municipality in this case and held the provision of the Tamaulipas State Constitution unconstitutional under the federal constitution, which clearly gives the states and the municipalities concurrent power over the public safety and traffic. The case is foundational because it is an example, from 1996, of federalism umpiring judicial review. The case also illustrates that in Mexico, unlike the United States, municipal governments have to some extent coequal constitutional status with state governments. This raises the interesting general question of whether it is a good idea to give municipal governments constitutional status in a federal regime. Both Brazil and Mexico do give municipal governments constitutional recognition, and both countries have overly strong federal governments and state governments that are, in my opinion, too weak. I think that while the effort to give municipalities constitutional status is laudable in promoting subsidiarity, it is a mistake for public choice reasons because it works in practice to excessively empower the national governments of Mexico and Brazil vis-​à-​vis the state governments in those countries. For this reason, I would recommend against giving municipalities constitutional status in federal constitutions. A final foundational Mexican judicial review case concerns the effects on Mexican constitutional law of Mexico’s ratification of an international human rights treaty by which Mexico became bound by the decisions of the

Mexico  241 Inter-​American Court of Human Rights. In On the Case of Radilla Pacheco and Others, Case No. 912, 2010, and others, the Supreme Court of Mexico held it was bound to recognize and give effect to such international human rights decisions. The Court said that: all authorities, within the scope of their respective jurisdictions, are obliged to enforce not only the human rights contained in international instruments signed by the Mexican state, but also those found in the Constitution, selecting the interpretation that shall be most favorable to protection of the right in question, which is understood by the pro persona principle.

By recognizing by treaty the authority of the Inter-​American Court of Human Rights, Mexico has tried to put itself under the jurisdiction of an international human rights court, which it hopes will become as protective of human rights as is the European Court of Human Rights.

B.  The Separation of Powers and Bicameralism It should be noted here that Mexico has a bicameral legislature with a Chamber of Deputies and a Senate. The Chamber of Deputies has five hundred members. Of these, three hundred are elected by plurality vote in geographic electoral districts, and two hundred are elected by proportional representation. The Senate is made up of 128 members, sixty-​four of whom are elected by the people of each state (two for each state and two for Mexico City); thirty-​two are the runner-​up from each state and one from Mexico City; and thirty-​two are chosen by proportional representation from party lists. Senators, like members of the Chamber of Deputies, are not allowed to succeed themselves, so each election brings in a whole new class of senators. This undoubtedly weakens the Senate relative to the president of Mexico. Several observations are in order here. First, the absence of midterm elections of the kind that exist in the United States greatly strengthens the president of Mexico who serves a six-​year nonrenewable term. U.S.  presidents, who serve only for four years, usually lose midterm elections every two years, which weakens U.S. presidents, but the president of Mexico is not so constrained. The absence of mid-term elections every two years, still today, in 2020, contributes to ongoing Mexican hyper-presidentialism. In addition, the one term limit on Mexican presidents and Senators is a huge mistake because it renders them lame ducks with no incentive to be responsive to public opinion, which is very undemocratic. I think Mexico would do much better with a four year presidential term coupled with a two term limit for Mexican presidents and no term limits at all for senators or legislators.

242  the History and growth of Judicial Review, Volume 2 Second, the partial use of proportional representation in selecting the Mexican Congress weakens the Congress by allowing a multiparty system, and that too strengthens the hyper-​presidentialism from which Mexico has historically suffered. Finally, Mexico’s senators should serve six year renewable terms with one-third of the Senate up for re-election every two years. Senators should be elected statewide in a two stage French-style contest where the second election is a run off of two top vote getters in the first election. A similar two stage electoral process with members of the Chamber of Deputies running in territorial districts should complete the process. If all of these reforms were made, Mexican hyper-presidentialism, which continues to exist today would come to an end. Some simple electoral law changes are needed to recalibrate the balance of power between Mexico’s president and its Congress. Mexico did in 2011 eliminate the president’s power to freeze rather than veto statutes by not publishing them. This was but a modest step toward curing Mexico of hyper-​presidentialism.22

C. Federalism Mexico was traditionally governed by Spain, prior to its independence, in a very centralized way. Moreover, even after the Mexican states were created, Article 76.V of the current Mexican Constitution, which was adopted in 1917, allowed the Mexican Senate to appoint provisional governors of the Mexican states when the Senate determined that state government had broken down. This phenomenon is akin to presidential rule in India, which was greatly curtailed by the S.R. Bommai Case. Presidents and Senates in Mexico used this power on sixty-​ two occasions between 1917 and 1975.23 Congress effectively put an end to this practice by statute in 1978—​long before Mexico democratized. In recent times, Mexican governors have become powerful political figures.24 Mexican federalism is augmented by Article 124 of the Mexican Constitution, which states that “[i]‌t shall be understood that the powers not expressly delegated by this Constitution to the federal authorities, are reserved to the States.”25 The word “expressly” was deliberately added, contrary to the wording of the U.S. Constitution’s Tenth Amendment, to empower the states more against the federal government than the United States had done.26 Article 115 of the Constitution contemplates a special role for municipal governments. Mexico has an implicit federal powers clause that has not had the influence of the Necessary and Proper clause in the United States.27

22

De la Garza, supra note 1, at 92. Id. at 136. 24 Id. 25 Id. at 138. 26 Id. 27 Id. at 140. 23

Mexico  243 The key problem with Mexican federalism is that it has suffered from the weakness of constitutionalism, in general, in Mexico, because all too often the Constitution has not been followed in real life. Now that the hegemonic party system is breaking down, federalism is showing signs of life in Mexico, and the Supreme Court is adjudicating federalism cases. We saw that with the Court’s decision in Municipality of Rio Bravo v. the Governor of Tamaulipas. The Supreme Court does not treat federalism cases as raising a political question, but it instead adjudicates them on the merits. This point is illustrated by the Supreme Court’s decision in Ayuntamiento of the City of Temixco, Morelos, Constitutional Controversy 31/​97, in which the Mexican Supreme Court adjudicated a lawsuit between a municipality and the State of Morelos. The state had resolved a boundary dispute between two municipalities in a way that the Ayuntamiento of the City of Temixco objected to on legal grounds. The Supreme Court heard the case on the merits sitting as a Constitutional Court, and it ruled for the municipal government and against the state government. This shows the strong role the Mexican Supreme Court plays in adjudicating power disputes among the three layers of government in Mexico: federal, state, and municipal. This case is translated and excerpted in Calabresi et. al., The U.S. Constitution and Comparative Constitutional Law at pages 677 to 681. Mexico has wisely not followed the U.S. model of there being one national abortion code. This is a religious issue, which should be left to states. Mexico has also left all the legal issues surrounding same-sex marriage and the rights of LGBTQ+ people at the state level. That may be O.K. for a period of transition, but, ultimately, I believe there should be one national law protects the rights of LGTBQ+ people thoroughly.

D.  The Mexican Bill of Rights and Unenumerated Rights The Constitution of Mexico contains a long and detailed list of traditional liberal rights that it constitutionally protects, but the political and legal culture in Mexico has long rendered those rights meaningless. There has been a striking change since 2007 with respect to the Mexican Supreme Court’s protection of human rights. This trend is well-​documented in Monica Castillejos-​Aragon, “The Transformation of the Mexican Supreme Court into an Arena for Political Contestation,” in Consequential Courts: Judicial Roles in Global Perspective.28 The Mexican Supreme Court was transformed from being “a passive and unimportant institution,” which was dominated by the PRI, which held an iron grip over all aspects of Mexican political life from 1929 until 2000. 28 Monica Castillejos-​Aragon, The Transformation of the Mexican Supreme Court into an Arena for Political Contestation, in Consequential Courts: Judicial Roles in Global Perspective 138 (Diana Kapiszewski, Gordon Silverstein, & Robert A. Kagan eds., 2013).

244  the History and growth of Judicial Review, Volume 2 De la Garza explains that “from 1995 to 2010, the Mexican Supreme Court initiated a fascinating process of institutional transformation, which positioned [the] justices [to play a big role in developing a] novel fundamental rights jurisprudence.”29 Three elements came together to effectuate the transformation of the Mexican Supreme Court. First, President Ernesto Zedillo, who came to power in 1994, proposed a sweeping judicial reform, which was adopted. As a direct result of this reform, the Mexican Supreme Court was given the powers of a Kelsenian Constitutional Court. The number of justices on the court was cut back from twenty-​one to eleven, and all new justices were appointed to the bench. A Judicial Council was formed to assume administrative tasks, which had previously distracted the justices. Second, on July 2, 2000, the PRI lost a presidential election for the first time since 1929. President Vicinte Fox appointed talented and energetic new justices to the Supreme Court as vacancies came open, and the existence of a competitive party system gave the Mexican Supreme Court real independence from the political branches of the government. Finally, several very talented Mexican Supreme Court judges themselves exhibited progressive judicial leadership and power. After 2007, the Mexican Supreme Court issued major rulings on controversial topics like abortion and same-​sex marriage. The bottom line is that since the mid-​1990s, Mexico has experienced a rights revolution. This is particularly evident in the 2007 Mexican Abortion Case—​Joint Actions of Unconstitutionality, 146/​2007 and 147/​2007. In this case, the Mexican Supreme Court was asked to review several new pro-​life challenges to the legalization of abortion in the Federal District of Mexico City. First, pro-​life groups challenged the legalization of abortion in the Federal District by arguing that there was a fetal right to life, which was protected by the Constitution. The Mexican Supreme Court rejected this claim. Second, a group of pro-​life men challenged the legalization of abortion unilaterally by women, claiming this discriminated against the men who had fathered the children and who they thought should have to participate in any abortion decision. The Mexican Supreme Court rejected this claim as well, saying that carrying an unwanted pregnancy burdens a woman much more than it burdens a man. Finally, pro-​life groups challenged the legalization of abortion by minors without parental consent. The Mexican Supreme Court rejected this claim as well. The court took the view that the legalization of abortion was a necessary step to stop back-​alley unsafe abortions. The court also argued that the new law was justified because it made abortion available to the poor whereas before the new law was passed, only wealthy women who could travel to jurisdictions where abortion was legal had access to abortion. The 2007 abortion decision was a profound change for a Catholic country wherein abortion had long been totally banned.

29

De la Garza, supra note 1, at 139.

Mexico  245 In 2010, the Mexican Supreme Court was asked by the federal attorney general to declare unconstitutional legislation adopted by the Federal District of Mexico City legalizing same-​sex marriages. In Mexican Same Sex Marriage Case, Action of Unconstitutionality 2/​2010, the Supreme Court of Mexico declined the federal attorney general’s request. The court said there was no fixed unchanging vision of the family in the Constitution of Mexico and that it was not unreasonable for the Federal District to recognize same-​sex marriage in light of the social purpose of marriage. As with abortion law, the legality of same-​sex marriage is now resolved differently in different states in the Mexican federation. It should be noted that in both the abortion case and in the same-​sex marriage case, the Supreme Court of Mexico did not impose a federal rule on abortion or same-​sex marriage on the states in the way that the U.S. Supreme Court did in Roe v. Wade, 410 U.S. 113 (1973); and in Obergefell v. Hodges, 576 U.S. _​_​_ (2015). The Mexican Supreme Court instead gave constitutional permission to the Federal District of Mexico City, which had legalized both abortion and same-​sex marriage to go ahead with these reforms. On the one hand, it could be said the Mexican Supreme Court was behaving in a judicially restrained way because it did not strike these two reforms down. On the other hand, again, the Mexican Supreme Court to some extent legitimized abortion and same-​ sex marriage reform by not holding the laws in question unconstitutional, and such reforms then spread to some but not all of the other Mexican states. In 2008, the Mexican Supreme Court heard a case involving a transsexual man who took sexual reassignment surgery and hormones in order to become a woman. She then sought to have her birth certificate revised to identify her as female instead of as male. The lower courts agreed to make a notation that she had changed her gender on her birth certificate but not to order the issuance of a new birth certificate. In Direct Civil Amparo 6/​2008 Concerning Declaration of Jurisdiction, the Supreme Court of Mexico ordered the lower courts and executive authorities to issue the plaintiff a new birth certificate indicating that she was and is a woman. The court concluded that this result complied with constitutionally protected principles of equality, human dignity, the right to freely develop one’s personality, and the right to health. The eleven justices were unanimous in arriving at this decision.

E.  Freedom of Expression Article 7 of the Constitution of Mexico protects freedom of writing and publishing in sweeping terms, but Article 41.IIIA allows for electoral laws, which regulate campaign financing and spending. The Supreme Court of Mexico, accordingly, upheld such campaign finance laws against a freedom of expression attack in SCJ Action of unconstitutionality 61/​2008 and accumulated actions 62/​ 2008, 63/​2008, 64/​2008, Federal Official Gazette, 3 October 2008.

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F.  Freedom of Religion and Laïcité Article 3:  1) of the Mexican Constitution protects freedom of religious belief based on the results of scientific progress, striving against ignorance and its effects, servitudes, fanaticism, and prejudices. Religion is not allowed in schools, but everyone is free under Article 24 “to embrace the religion of his choice and to practice all ceremonies, devotions, or observances of his respective faith, either in places of public worship or at home, provided they do not constitute an offense punishable by law.” These clauses indicate that Mexico has had a long and turbulent history with respect to religion and the role of the Catholic Church, which at times calls to mind the French experience with laïcité. Under the Constitution of 1917, the Catholic Church was officially suppressed because of its abuses of power prior to that time. In 1929, the government and the church reached a wary ceasefire in which each would be watchful of their rights.30 Since then, the Mexican Catholic Church has been embroiled in fights over the legalization of abortion and the morning-​after pill. Mexico does not have an established judicial case law or culture of protecting religious liberties.

G. Criminal Procedure Mexico has recently taken “some steps to liberalize its traditional civil law approach to criminal procedure, which was highly inquisitorial.”31 Several Mexican states have recently “proposed, and in one case approved the implementation of oral and public accusatorial criminal process and trials.”32 These efforts are just getting started, and so it is hard to know if they will bear fruit. Mexico’s criminal justice process is characterized in general by three features: (1) power is heavily concentrated in the office of public prosecutor, who has the power of being the investigating magistrate; (2) even weak evidence of guilt can lead to a conviction; and (3) constitutional protection for civil liberties and due process through amparo proceedings is reserved exclusively to the federal courts, and as a result the state courts where most criminal cases are heard apply formalistic rules, thereby reserving a due process analysis for later federal court review.33 Habeas-​type review is available through the filing of amparo petitions.

30 Id. at 186. 31 Miguel Sarre & Jan Perlin, Mexico, in Criminal Procedure: A Worldwide Study 352 (Craig M. Bradley ed., 2d ed. 2007). 32 Id. 33 Id. at 351–​52.

Mexico  247 Although the Constitution provides for jury trial, most Mexican cases are tried by a judge.34 Despite the fact that the law demands that the judge be accompanied by his/​her secretary in all hearings, in the great majority of these hearings the judge is not present and the law secretary conducts the hearing.35 “Mexican law, rooted in the continental tradition, has been reluctant to accept guilty pleas as well as charge or sentence bargaining.”36 Amparo relief is available wherever there is a final judicial decision by a federal court, a military court, or a state court. Federal court judges preside over amparo trials. An amparo trial can be requested “to challenge any ‘act of authority’ that results in harm to persons with regard to the protection of their fundamental rights. Because of the nature of amparo, the prosecution can never bring a petition of this sort.”37

H.  Unconstitutional Searches and Seizures The Mexican Supreme Court, inspired by the case law of the Inter-​American Court of Human Rights, has broadly construed Article 16 of the Mexican Constitution, which provides that: No one shall be molested in his person, family, domicile, papers, or possessions except by virtue of a written order of the competent authority stating the legal grounds and justification for the action taken. ***

This article, which appears on the face of the Constitution to protect individuals from governmental searches, has been held by the Supreme Court of Mexico to also protect an adulterous wife from a search of her e-​mails by her suspicious husband. Mexico:  Direct Amparo on Appeal 1621/​2010. This is an example of what is called the horizontal application of constitutional rights whereby such rights apply as between two private parties as well as applying vertically between a private party and the government. In this case, the Mexican Supreme Court ruled that since the wife’s constitutional right to privacy had been violated by her husband, the evidence of her adulterous affair had to be suppressed with the result that the wife was given custody of the children and the husband was ordered to pay child support.

34 Id. at 380. 35 Id. 36 Id. at 382. 37 Id. at 393. For a fuller treatment of Mexican criminal procedure, see Sarre & Perlin, supra note 39.

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I.  Election Law and Militant Democracy Another subject of constitutional law on which Mexican courts have been active is with respect to the right of a party to organize and register to compete legally in Mexican elections. The Superior Court of the Mexican Federal Electoral Tribunal unanimously upheld a decision of the General Council of the Federal Electoral Institute, which denied a petition from a group that requested to be registered as the “Socialist People’s Party” on the grounds that the party’s “internal bylaws did not meet all of the minimum democratic requirements imposed by law, as it had failed to hold the minimum number of district assemblies, failed to meet the legal quorum at the general assembly and failed to demonstrate the minimum membership. ***” Protection of the Political and Voting Rights of the Citizens, Case No. SUP-​JDC-​781/​2002. This case shows that Mexican democracy, like German democracy, can at times be “militant” in keeping anti-​democratic parties from competing in elections. In Germany, this led in the 1950s to bans on both a neo-​ Nazi party and a Stalinist party, while in Mexico in 2002, it led to the banning of the “Socialist People’s Party.” The Mexican courts have also issued opinions enforcing gender equity in party lists of candidates. See, for example, Joint Cases for the Protection of the Political and Electoral Rights of the Citizen, Case No. SUP-​ JDC-​12624/​2011 and Others.

J. Conclusion In conclusion, Mexico has adopted a vigorous, if restrained model of judicial review, in the last twenty-​five years. The Supreme Court of Mexico has not been at the vanguard of social change as was the Warren Court in its heyday in the United States or the Roe v. Wade Court in the United States in 1973. But, we can fairly say that the Supreme Court of Mexico, exercising its power of judicial review, has legitimized the legalization of abortion law, of same-​sex marriage, and of the rights of transgendered persons. The court has avoided, for the most part, setting national rules on controversial social issues, which has allowed for Mexican federalism to offer different rules on many social issues in one state as opposed to another. Mexican judicial review originated and grew as a result of borrowing, first from the United States, and second and more successfully from Germany. Second, Mexican judicial review grew for judicial umpiring reasons. Third, Mexican judicial review since 2000 has been made easier by the division of power and political party control of the presidency, the two elected houses of Mexico’s bicameral federal legislature, and the state governments, as well as the

Mexico  249 government of Mexico City. The Mexican Supreme Court has the political space in which it can be a significant and independent actor. Finally, judicial review in Mexico may have been a rights from wrongs reaction to the PRI’s brutal dictatorship over the country. It thus offers an interesting case study of the various theories of the what gets judicial review started in a jurisdiction and what helps it grow in power over time.

Chapter Ten Indonesia

The Republic of Indonesia is the fourth most populous country in the world, with over 267 million people. It is also the world’s largest Muslim majority nation, and it is a peaceful nation as well. Indonesia ranks ninetieth in the world in population density out of 244 nations. It is an archipelago of more than 17,500 islands, and it is ethnically and linguistically very diverse. Indonesia has thirty-​ four provinces and has made efforts in recent years to decentralize power. Its economy is the sixteenth largest in the world. Indonesia now has a powerful Constitutional Court. I think that judicial review originated in Indonesia for rights from wrongs reasons and as a result of borrowing. In addition, power is divided among different institutions in Indonesia. As a result, the court has political space within which it can operate. My understanding of Indonesia has been shaped by:  Simon Butt and Tom Lindsey, The Constitution of Indonesia: A Contextual Analysis (2012); by Donald L. Horowitz, Constitutional Change and Democracy in Indonesia (2013); by Angus McIntyre, The Indonesian Presidency: The Shift from Personal Toward Constitutional Rule (2005); by Simon Butt, Central-​Local Relations in Indonesia: Reforming the Integralist State, in Central-​Local Relations in Asian Constitutional Systems (Andrew Harding & Mark Sidel eds., 2015); and by Tom Ginsburg, “Constitutional Courts in East Asia,” in Comparative Constitutional Law in Asia 47 (Rosalind Dixon & Tom Ginsburg eds., 2014). I rely in this Chapter, principally, on the material in Steven Gow Calabresi, et. al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials (Foundation Press 2016). I will first discuss briefly the history of Indonesia and will then examine the Constitutional Court’s case law to see how well judicial review is actually working in Indonesia. I will then consider why judicial review originated in Indonesia and consider to what extent the transplanted institution has taken root.

I. History Human beings have lived in Indonesia since the dawn of civilization. Indonesia borders on both the Indian Ocean and the Pacific Ocean and includes thousands of islands so it has always been exposed to trade and to different ideas. My main historical source here is Tim Hannigan, A Brief History of Indonesia:  Sultans, The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0011

252  the History and growth of Judicial Review, Volume 2 Sices, and Tsunamis—The Incredible Story of Southeast Asia’s Largest Nation at 69 (2015). Indonesia has done a brisk business in the spice trade since at least the seventh century A.D. From that time up until the 1500s, Indonesia was a Hindu and Buddhist collection of many small principalities on the many different islands, which compose the country and which contain many different groups speaking different languages. Rule of the country was very decentralized. Islam began to permeate Indonesia in the 1300s, and it became the dominant religion by the end of the 1500s. Vasco de Gama, a Portuguese explorer, landed with four ships in Indonesia on May 20, 1498. The Portuguese were the first European seafaring power to appreciate the huge profits they could make by exporting spices directly from Indonesia to Europe on ships. This cut out the Arab and Venetian middlemen who controlled the spice trade over land. The Portuguese were the first Europeans to establish colonies in Indonesia starting in 1596. Soon after some Dutch ships arrived in Indonesia, and by 1602, the Dutch established the Dutch East India Company to monopolize the Indonesian spice trade. In the 1600s, the Dutch beat out the Portuguese and the British for control of the Indonesian spice trade, according to Tim Hannigan. The Dutch sent only male colonists to their few small forts and cities in Indonesia, and it was not until the end of the 19th Century that the Dutch really controlled the entire, decentralized Indonesia archipelago. Ultimately, one million male Dutch colonists settled in Indonesia intermarrying with local women. Thus, a large population of Indo-​Europeans grew up according to Tim Hannigan. As with the Portuguese colonists in Brazil and the Spanish colonists in Mexico, the Dutch immigrants to Indonesia went there to make money, in this case, out of the spice trade. They did not have the New England American colonies ambition to build a new Puritan Christian city on a hill, which would lead to the reform of Catholicism or Anglicanism in Europe. The Dutch intermarried with the local women, and as a result their cultural impact was greatly diluted. The Dutch settlers of Indonesia were not trying to create “A Shining City on a Hill” or a Novus Ordo Seclorum—A New Order of the Ages—the way the Americans were trying to do. The Dutch colony of Indonesia was ruled autocratically by the Netherlands, and so no culture of democratic self-​government grew up in Indonesia like the democratic culture of the thirteen original American states. The Dutch did not include native Indonesians in governing institutions the way the British did with native Indian elites from the 1860s until Indian independence in 1947. When Japan unilaterally surrendered in World War II on August 14, 1945 to the United States, its troops still controlled Indonesia, which Japan had conquered from the Dutch. Departing Japanese troops let the home-​grown Indonesian

Indonesia  253 independence movement take control over the country rather than waiting for the Dutch to retake control of the country. Presidential dictatorship ensued from 1945 to 1999 because the Dutch had never nurtured local democratic institutions in Indonesia, the way the British had done in the United States and in India. European traders first came in contact with Indonesia in 1512. It was governed during the colonial period as the Dutch East Indies.1 Dutch control over much of the country was tenuous, at times, and it was only in the twentieth century that Dutch influence reached all of the Indonesian islands. The country was invaded and occupied by Japan during World War II. Two days after Japan surrendered to the United States, Indonesia declared its independence from the Netherlands in 1945. The country adopted a very short, bare-​bones Constitution, which is still in effect, although it has been substantially amended. The Dutch government recognized Indonesia’s independence in 1949. The founding president of Indonesia, Sukarno, used the brevity of the Constitution and the powers of his office to create a dictatorship. Sukarno kept himself in power by playing the army and the Communist Party off against each other. In 1966, his government collapsed after an attempted leftist coup led the army to launch a right-​wing counter coup led by Major General Suharto. Over half a million Indonesians died in the ensuing purge of the military’s opponents. Suharto established a right-​wing fascist dictatorship based on the premise that he was the father of the Indonesian family, who must be obeyed in accordance with the Volksgeist of the Indonesian people, which Suharto claimed was hostile to constitutionally limited democracy. The United States supported Suharto during the Cold War era, since the United States feared the spread of communism from Vietnam to Indonesia from which it could threaten Australia and New Zealand. Unparalleled economic growth kept Suharto in power until 1998, when the Asian economic crisis plunged the country into chaos. Suharto was overthrown, and a democratic government was slowly put in place. During the three years from 1999 to 2002, the bare-​bones 1945 Constitution was very substantially amended to weaken the presidency, to enshrine in the Constitution a real separation of powers, to guarantee procedural due process, to decentralize power to the provinces, and to add a lengthy Bill of Rights modeled on the Universal Declaration of Human Rights. The president and vice president are now elected directly by the people of Indonesia for a five-​year term with a two-​term limit, and a runoff is held to ensure that the winners get at least 51 percent of the national vote and 20 percent of the vote in at least half of the provinces of Indonesia. The legislature is bicameral,

1

Simon Butt and Tom Lindsey, The Constitution of Indonesia: A Contextual Analysis (2012).

254  the History and growth of Judicial Review, Volume 2 with the lower house representing the people and the upper house dealing with matters of regional government. A Constitutional Court was also created with the power of judicial review, which has been very active and is held in high esteem by the people. Indonesia thus has functioned as a constitutional democracy with judicial review for the last twenty years. While it is still too early to say for sure whether this structure will last, the evidence so far is certainly encouraging.2 There is, we should note, a growing movement committed to the Islamization of Indonesia, which is described in Arskal Salim, Challenging the Secular State: The Islamization of Law in Modern Indonesia.3 This development is worrisome for the continued existence of democracy and of judicial review and constitutional government in Indonesia. When democratic Indonesia was founded in 1999, the province of Aceh, which was Islamic, wanted different rules from Indonesians living in Papua and East Timor where there were many Christians. Bali, in contrast, is largely Hindu and Buddhist. As a result, there have been various secessionist movements in Indonesia, which only became a nation-​state of its own with its current borders as a result of the period of Dutch colonial rule.4 East Timor ultimately did secede and became an independent and sovereign state with its own seat in the United Nations. This shows the devolutionary pressures that Indonesia is experiencing. In the five years after Indonesia overthrew the Suharto presidential dictatorship, four major constitutional amendments were passed. These amendments eliminated presidential power to rule by decree, provided for election of the president and vice president in a two-​stage process where the two highest vote getters in the first stage have a runoff against each other as in France under the Fifth Republic. A two five-​year term of office limit is imposed on both the president and the vice president. Very substantial power is devolved to the regions. A highly rights-​protective Bill of Rights was added to the constitution. And, a powerful Constitutional Court was created to umpire federalism and separation of powers cases and to protect individual rights. Professor Tom Ginsburg observes in a 2014 survey that political transitions to democracy in three East Asian countries, Indonesia, South Korea, and Mongolia, have led to the creation of powerful constitutional courts.5 As Professor Ginsburg 2 See generally Donald L. Horowitz, Constitutional Change and Democracy in Indonesia (2013); Angus McIntyre, The Indonesian Presidency: The Shift from Personal Toward Constitutional Rule (2005). 3 Arskal Salim: Challenging the Secular State: The Islamization of Law in Modern Indonesia (2008). 4 Simon Butt, Central-​Local Relations in Indonesia: Reforming the Integralist State, in Central-​ Local Relations in Asian Constitutional Systems (Andrew Harding & Mark Sidel eds., 2015). 5 Tom Ginsburg, Constitutional Courts in East Asia, in Comparative Constitutional Law in Asia 47 (Rosalind Dixon & Tom Ginsburg eds., 2014).

Indonesia  255 notes, this phenomenon is surprising for two reasons. First, the East Asian countries involved were presidential dictatorships until recently, which renders surprising their acceptance of powerful Constitutional Courts. Second, the religious traditions of Buddhism, Confucianism, and Islam that prevail in the region emphasize responsibilities over rights and are thus sometimes seen as being incompatible with vigorous judicial review. This has certainly proved to be the case in Japan, where the transplantation of judicial review is widely regarded to be disappointing. This raises the question of what makes Indonesia, South Korea, and Mongolia different.6 Professor Tom Ginsburg recounts that the third of four transformative constitutional amendments adopted in the late 1990s and the early 2000s created the Indonesian Constitutional Court.7 Professor Ginsburg explains that “[t]‌he new court was modeled largely on the South Korean Constitutional Court,” with nine justices—​three nominated by the president, three by the Supreme Court, and three by the People’s Consultative Assembly (MPR), respectively.8 The First Amendment to the Indonesian Constitution, passed in 1999, expressly limited judicial review to review only of post-​1999 laws. In a foundational case, the Indonesian Constitutional Court held that this restriction was unconstitutional and therefore null and void.9 In another foundational case in 2004, the court struck down a ban on the Indonesian Communist Party.10 The court also struck down an anti-​terrorist law by a 5 to 4 vote in a highly charged political climate after the Bali terrorist bombings of 2002.11 All in all, Professor Ginsburg concludes that the Indonesian Constitutional Court has “proven independent of executive and legislative branches of the Indonesian government, and [it has] made several unpopular but legally sound rulings.”12 Professors Butt and Lindsey explain that in 2003, the Constitutional Court organic law was amended in response to fears that the Constitutional Court had been exceeding its jurisdiction and that there were insufficient ways of addressing improper behavior by Constitutional Court judges. In two cases in 2011, the Indonesian Constitutional Court substantially weakened these amendments to the Constitutional Court Law .13 . I will now turn to a short history of judicial review in Indonesia.



6

Id. at 148. Id. at 56. 8 Id. at 57. 9 Id. at 58–​59. 10 Id. at 59. 11 Id. 12 Id. at 60. 13 Butt & Lindsey, supra note 1, at 144. 7

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II.  A Short History of Judicial Review in Indonesia Indonesian constitutionalism and judicial review has been characterized by many of the features of constitutionalism and of judicial review in other countries. I will, in the subsections below, discuss some of the key features of both the amended constitution and the case law of the Constitutional Court of Indonesia. I am drawing here on my prior work in Steven Gow Calabresi, et. al., The U.S. Constitution and Comparative Constitutional Law (Foundation Press 2016).

A.  The Separation of Powers The 1945 Constitution of Indonesia failed to establish a clear separation of powers between the all-​powerful president and the legislature. As a result, Indonesia was essentially a hyper-​presidential dictatorship until 1999, when four constitutional amendments were adopted, which weakened presidential powers in order to restore democratic rule. The dictators of Indonesia from independence until 1999 called themselves presidents, but the then-​existing Indonesian constitutional system was not a separation of powers, presidential system with checks and balances because all power was concentrated in one person: the president. From 1945 to 1999, Indonesia was thus a presidential dictatorship rather than a presidential, separation of powers and checks and balances regime. A key step in restoring democracy in Indonesia was thus the limitation of presidential lawmaking powers. The First Amendment to the Indonesian Constitution, which was adopted in 1999, was specifically devoted to weakening presidential power. It creates a two five-​year term limit on the president and restricts the president’s lawmaking powers by transferring them to the legislature.14 Presidential decree lawmaking power is limited to times of crisis, and even then such laws must be approved by the legislature at its next sitting.15 The Second Amendment, which was adopted in 2000, further limits presidential power.16 In addition, the creation of 14 “Article 7 The President and Vice President shall hold office for a term of five years and may subsequently be reelected to the same office for one further term only.” Constitution of Indonesia online: www.ilo.org. 15 “Article 12 The President may declare a state of emergency. The conditions for such a declaration and the subsequent measures regarding a state of emergency shall be regulated by law.” Constitution of Indonesia online: www.ilo.org. 16 Under the amended Constitution of Indonesia, presidential powers are described in the following very limiting way: “The president has constitutional authority over the government and has the power to name and remove ministers. He or she has the right to propose bills to DPR, to discuss bills with the DPR to reach an agreement, make government regulations in accordance with laws, and in the case of emergencies has the power to make Government regulations in lieu of law. Militarily, the president holds supreme authority over the  Indonesian National Armed Forces. Diplomatically, the president can only sign treaties, appoint ambassadors, accept ambassadors from other countries, rehabilitate prisoners, and

Indonesia  257 a powerful Constitutional Court has helped to replace presidential dictatorship with a presidential separation of powers and checks and balances system. The Constitutional Court is actively engaged in separation of powers umpiring between the president and the legislature in Indonesia. The Indonesian experience thus further shows the importance of not delegating sweeping lawmaking powers to the president in a presidential separation of powers and checks and balances regime. Separation of powers umpiring, as well as federalism umpiring, always works to empower a Constitutional Court or a system of judicial review. It is important to note that Indonesia followed the same path in over-​coming hyper-​presidentialism as did South Korea and Mexico. The four constitutional amendments that followed the democratic revolution of 1998, when President Suharto finally resigned, have “changed the political game by establishing democratic principles of separation of powers, checks and balances, and revising the constitutional framework for executive-​legislative relations.”17 Indonesia is, as a result, “the only country in Southeast Asia to be rated ‘free’ in Freedom House’s annual survey of political rights and civil liberties.”18 The first major check, as mentioned before, on presidential and vice-​ presidential power is in the First Amendment’s establishment of the two fiveyear term limit for both the president and the vice president.19 Second, the Constitution was amended to provide for direct popular election of the president and vice president, with a runoff required if no candidate garners more than 50 percent of the votes. The two highest vote getters in the initial election compete in the runoff election.20 A third check on power was the creation of a power-​limited upper house of the legislature called “[t]‌he House of Regional Representation.”21 Finally, and most importantly, the post-​1998 amendments created a very powerful and highly respected Constitutional Court. As of 2014, this entity had reviewed the constitutionality “of seventy-​four laws, of which four have been nullified in their entirety, and twenty-​three have been nullified in part.”22 There are nine justices on the Constitutional Court.23 The court’s progressive orientation has dismayed some legislative and executive officials.

appoint Judicial Committee members with the DPR's agreement. The president has the power to grant pardons but must consider the advice of the Supreme Court. The president also has the final say over chief justice candidates.” 17 Nadirsyah Hosen, Promoting Democracy and Finding the Right Direction: A Review of Major Constitutional Developments in Indonesia, in Constitutionalism in Asia in the Twenty-​First Century 322 (Albert H.Y. Chen ed., 2014). 18 Id. at 323. 19 Id. at 324. 20 Id. at 325. 21 Id. at 326. 22 Id. at 328. 23 Id. at 329.

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B. Federalism A “key reform” demanded by the people of Indonesia in 1998, when the highly centralized dictatorship of President Suharto’s rule was overthrown, was massive decentralization of the Indonesian constitutional regime.24 Similar demands have been made all over Asia. In Indonesia, the province of Aceh has been allowed to be the only Indonesian province, which has adopted shari’a law. Papua and West Papua, which have many Christians, have been granted special autonomous status, on account of their religion. Meanwhile, Bali, is the only Hindu majority province in Indonessia and has some special privileges as well. Indonesia certainly is not lacking in religious diversity. Decentralization began in 1999 and has been quite extensive in practice, although the Indonesian Constitutional Court has yet to come up with a coherent body of case law on the subject, which is also true of the U.S. Supreme Court. What both courts need is a subsidiarity doctrine informed by the economics of federalism.25 Professor Simon Butt argues in Central-​Local Relations in Indonesia that local governments have been given important powers subject to a national veto and to judicial review.26 But, in practice, Professor Butt says that neither the federal government nor the federal courts have reviewed or invalidated many local government actions. This is partly due to the ambiguity of the federal-​local division of power in the Constitution and under federal law and partly due to the fact that federal government entities seem only to be concerned about local government actions that “encroach on the central-​government revenue streams.”27 Indonesian decentralization and federalism is thus very much alive and well. At this point, a comparative constitutional law point about when federalism and decentralization work well and when they do not is in order. We saw in Volume I and we have also seen in this Volume that federalism has thrived in countries with religious differences among the initial states as was the case among the thirteen original United States, the provinces of Canada, and the Länder of Germany. In contrast, federalism has worked out poorly in religiously homogenous regimes like Australia, Italy, Brazil, and Mexico. Indonesian federalism or decentralization may be thriving because some regions want shari’a law, other

24 Butt, supra note 4, at 85. 25 See Steven G. Calabresi & Lucy D. Bickford, Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law 123–​189, in Nomos LV Federalism and Subsidiarity (James E. Fleming & Jacob T. Levy eds., 2014). 26 Butt, supra note 4, at 87. 27 Id.

Indonesia  259 regions are Christian, and still other regions are Hindu-​Buddhist. Whatever the reason, however, Indonesia has become since 1998 a very decentralized country.

C.  Bill of Rights and Unenumerated Rights Prior to 1998, the human rights situation in Indonesia was abysmal. The 1945 Constitution of Independence was a short, bare-​bones document with no Bill of Rights. Citizens were given equality in law and government, in theory, and that was it. There was no freedom of expression, labor unions were government controlled, and the courts were both corrupt and not independent from the government. Once the dictatorship fell in 1999, there was an irresistible demand for constitutional protection of individual rights from government abuse by a Constitutional Court. The Constitution was amended to grant citizens human rights and to grant rights drawn from the Universal Declaration of Human Rights. The Constitutional Court began to play a pivotal role in human rights enforcement—​a role as to which it has exclusive power. The Constitution of Indonesia does now have clauses in it that are quite similar to what one might find in the U.S. Bill of Rights, in the German Bill of Rights, and in the Italian Bill of Rights. Social welfare rights are protected in addition to classical liberal rights. But, all of the rights that are protected are subject to a provision like Section 1 of the Canadian Charter of Rights and Freedoms, which allows the legislature to override them. Thus, Article 28J(2) of the Indonesian Constitution provides that: In exercising his/​her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.28

The presence of this override clause means that Indonesia, like South Africa, Canada, and Germany, uses proportionality review of the sort championed by Professor Aharon Barak. Overrides may not be made according to Article 28I(1) of the Constitution of Indonesia of:



28

Constitution of Indonesia online: www.ilo.org.

260  the History and growth of Judicial Review, Volume 2 The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.29

Note that freedom of expression is not on the Article 28I(2020) list. Professors Butt and Lindsey explain that the Constitutional Court of Indonesia has struck down sedition laws of various kinds, but it has upheld libel laws, laws against pornography when they are constitutionally challenged, and laws regulating political speech that would clearly be struck down by the Constitutional Courts of South Korea or of Germany.30 For a country with the fourth largest population in the world, which spans thousands of islands, and which is both a democracy and Islamic, Indonesia has traveled a long road since 1999 toward liberal, democratic governance.31

D.  The Death Penalty in Indonesia Indonesia decided two important death penalty cases, including one involving a group of drug smugglers trafficking heroin and a second holding that the use of a firing squad is permissible in capital punishment cases. Both of these cases are excerpted in Steven Gow Calabresi et. al., The U.S. Constitution and Comparative Constitutional Law. The drug smugglers asked the Constitutional Court to rule that the death penalty for drug trafficking violated the drug smugglers rights to life under Article 28I(1). A 5 to 4 majority of the court upheld the law,32 concluding that drug trafficking was such a crime against humanity that it trumped the right to life in Article 28I (1). In the Death Penalty Case, 2-​3/​PUU-​V/​2007, the court noted that it is inappropriate in such cases to focus solely on the hardship of capital punishment on the guilty, while overlooking the costs of criminal misconduct with respect to the victims of such misconduct.33 The court noted that criminal misconduct is sometimes punished by death under shari’a law and that Indonesia is an Islamic country. The court concluded that capital punishment was appropriate in serious narcotics offenses. It should be observed here that the world’s four most populous countries are China, India, the United States, and Indonesia. All four countries allow for the

29 Id. 30 Butt & Lindsey, supra Note 1. 31 Hosen, supra note 21. 32 In the majority:  Asshiddique, Fadjar, Natabaya, Palguna, and Soedarso. In the minority: Harjono, Roestandi, Marziki and Siahaan. 33 This case is translated into English in Steven Gow Calabresi et al., The U.S. Constitution and Comparative Constitutional Law 795–​799 (2016).

Indonesia  261 legal imposition of the death penalty and have imposed capital punishment in the last twenty years. Accordingly, Indonesia is not out of line with other populous countries in the world in imposing capital punishment. Such punishment is the norm in the world’s four most populous countries, and it is probably the case that more than 51 percent of the human population live in countries that have the death penalty, which countries include all Islamic countries like Indonesia. The next issue was whether Indonesia’s practice of carrying out some capital sentences by using a firing squad for the so-​called Bali Bombers was unconstitutional.34 In the Bali bombing, terrorists killed 202 persons and a further 209 persons were injured. The Bali bombing was a major terrorist attack conducted by Muslim extremists and was treated in Indonesia as being akin to the 9/​11 terrorist attacks in the United States. In the Firing Squad Case, Number 21/​PUU-​VI/​2008 (2008), the court was asked to consider whether execution by firing squad of the Bali Bombers constituted “torture” or was “cruel and inhumane.” The court held that execution by firing squad of the Bali Bombers was not, in fact, torture, and that it was constitutional. The Constitutional Court said that pain in execution is something that cannot be avoided. The court therefore concluded that the use of firing squads to impose the death penalty was not a form of torture.35

E.  Equality Under the Law The Indonesian Constitution has two clauses that pertain to equality under the law. They provide: Article 27 “(1) All citizens shall be equal before the law and the government and shall be required to respect the law and the government, with no exceptions.”36 Article 28D(1) “Every person shall have the right of recognition, guarantees, protection and certainty before a just law, and of equal treatment before the law.”37

34 Id. at 800–​3. 35 See Coleman Lynch, Indonesia’s Use of Capital Punishment for Drug Trafficking Crimes: Legal Obligations, Extralegal Factors, and the Bali Nine Case, 40 Colum. Hum. Rts. L. Rev. 523 (2009). 36 Constitution of Indonesia, supra note 42. 37 Id.

262  the History and growth of Judicial Review, Volume 2 In the Female Candidates Case, Constitutional Court Decision 22-​24/​PUU-​ VI/​2008, the court held that the legislature could conform to international human rights norms by making it legally easier for women to be elected to the national legislature.38 This was an important ruling for an Islamic country that opened the door to female legislative candidates. In the Anti-​Corruption Court Case, Constitutional Court Decision 012-​ 016-​ 019/​ PUU-​ IV/​ 2006, the court upheld the constitutionality of a special corruption court39 but urged the legislature to eliminate ordinary court jurisdiction over these same cases for double jeopardy and equality before the law reasons.

F.  Freedom of Expression Chapter XA Human Rights, Article 28 and Article 28F as well as Chapter 10(a) of the Indonesian Constitution broadly protect freedom of expression and of association, but freedom of expression is subject to legislative overrides, which is also the case in Canada. Professors Butt and Lindsey explain that “[i]‌n 2008, the Constitutional Court heard three separate constitutional challenges to Indonesia’s defamation laws brought by journalists and press organizations.”40 Although all three defendants clearly deserved to win, they all lost. The cases upheld the imprisoning of a journalist for reporting on public sexual harassment allegations; Constitutional Court Decision 14/​PUU-​VI/​2008.; the handing down of a one month suspended sentence for calling the attorney general a “fool” for banning some school history books; Constitutional Court Decision 14/​PUU-​ VI/​2008; and the punishing of a journalist who alleged on a blog that an energy company had bribed a government official. Constitutional Court Decision 50/​ PUU-​VI/​2008. In short, there is no such thing as a constitutional right to freedom of expression in Indonesia. The Constitutional Court of Indonesia values reputational interests and the maintenance of public morality ahead of freedom of expression.

G.  Freedom of Religion Despite broad constitutional language protecting freedom of religion, Indonesia does not, in fact, fully guarantee freedom of religion in the way the United States and Germany do. Religious freedoms granted by the Constitution are

38

Butt & Lindsey, supra note 1, at 69. Id. at 113–​14. 40 Id. 39

Indonesia  263 highly qualified because of the Article 28J (2) power of the government to override other constitutional rights.41 This is most dramatically illustrated by The Blasphemy Case, Constitutional Court Decision 140/​PUU-​VII/​2009, in which the Constitutional Court in 2009 upheld the constitutionality of a blasphemy law that allowed the government to ban religious organizations that did not conform with Indonesia’s recognized religions. It should be noted, however, that the Constitutional Court did, in the Religious Courts Case, reject a claim made by an Islamic man that the religious courts in Indonesia ought to be able to order people to follow Islamic law in full and not only in the areas referred to in Article 49(1).42 The court turned down his claim saying that Islam was only one of many sources of Indonesian law along with customary law, and western law. One of the justices hearing the case said at oral argument, “You must understand that in this Republic of Indonesia, the highest law is the 1945 Constitution, not the Qur’an. As Muslims, we consider the Qur’an to be the highest law but *** the national consensus is that the Constitution is the highest law.”43 This is quite a striking victory for freedom of religion in the world’s largest Islamic country.

III.  The Origins and Growth of Judicial Review in Indonesia What then explains the birth and growth of real judicial review in Indonesia in the past fifteen years? Clearly, one thing that gave birth to Indonesian judicial review was widespread public hatred of the wrongs committed by Indonesia’s dictators before 1999. There is thus a very strong rights from wrongs aspect to Indonesian judicial review. Professor Alan Dershowitz’s book Rights from Wrongs: A Secular Theory of the Origins of Rights44 helps to explain Indonesia’s adoption of a Bill of Rights and a system of judicial review with a Constitutional Court. The Constitutional Court caselaw discussed above shows that the Indonesian Court will sometimes enforce constitutional rights, and, at other times, it will not do so. Indonesia has a mixed record of human rights protection. But, Indonesia is also a decentralized, federal, separation of powers democracy, and it is the most populous Islamic country in the world. It has a good Bill of Rights, as a formal textual matter. Critically, it places the rule of law and of the Constitution of Indonesia over the rule of the Koran. Indonesia is thus light-​years ahead

41 Id. at 233–​34. 42 Constitutional Court Decision 16/​PUU-​VI/​2008. 43 Butt & Lindsey, supra note 1. at 224. 44 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005).

264  the History and growth of Judicial Review, Volume 2 of Iran, Turkey, or Saudi Arabia in 2020 when it comes to judicial review and human rights. A second cause of the creation of judicial review in Indonesia, as Professor Ginsburg mentions, was the borrowing of the Constitutional Court idea from South Korea, which had in turn borrowed it from Germany. The zeitgeist of the times favors judicial review of the constitutionality of legislation. This is especially the case since a system of strong judicial review helps to ensure the IMF and global investors that a country will observe the rule of law, and that it is therefore safe to invest in it. Indonesia’s record in freedom of expression Constitutional Court cases does not remotely compare with the record of the South Korean Constitutional Court’s, which is discussed in my casebook, The U.S. Constitution and Comparative Constitutional Law.45 Indonesia’s record in freedom of religion cases is not so great either, as is also the case with South Korea.46 Indonesian Constitutional Court case law also parts its way with South Korean Constitutional Court case law in that it has not issued decisions protecting the rights to self-​determination, free activity, and the right of personality, all of which may include the freedom to choose his or her sexual relationships.47 The Indonesian Constitutional Court has not issued equal protection rulings like the South Korean Constitutional Court’s decisions striking down a law that prohibited children from following their mother’s surname because it results in gender inequality and a law that said that only male descendants could serve as successive house heads of families.48 Thus, Indonesian Constitutional Court case law is less liberal than is the Constitutional Court case law of South Korea. Indonesia did borrow the idea of having a Constitutional Court from South Korea, but it has produced fewer liberal decisions at least so far. A third cause of the origin of judicial review in Indonesia is that it was accompanied by massive decentralization. There was accordingly a major need for a Constitutional Court to serve as an umpiring institution between the center and localities in Indonesia. This function of Indonesian judicial review is discussed in “Central-​Local Relations in Indonesia:  Reforming the Integralist State,” by Simon Butt in Central-​Local Relations in Asian Constitutional Systems.49 Judicial umpiring in a massively decentralized legal system is thus another cause of the rise in Indonesia of a powerful Constitutional Court. As I noted earlier, the Indonesian Constitutional Court is reluctant to rein in the provinces and local governments, which is probably a good thing given Indonesia’s

45

Calabresi et al., supra note 33, at 995–​97. Id. at 1133–​34. Id. at 723–​724. 48 Id. at 907. 49 Butt, supra note 4. 46 47

Indonesia  265 more than three hundred ethnic groups and its religious diversity. In addition, the Indonesian Constitutional Court is available to umpire separation of powers cases between the president and the legislature. Power is checked and balanced. The Constitutional Court of Indonesia thus has the political space in which it can exert itself, unlike the Japanese Supreme Court. A fourth cause of the origins of judicial review in Indonesia may be the phenomenon that Professor Tom Ginsburg has observed in South Korea, Taiwan, and Mongolia of a desire of the initial political parties to engage in “insurance and pre-​commitment” for periods of time when a party is out of power at the national level. There may also be an effort of the kind Ran Hirschl notes in Towards Juristocracy:  The Origins and Consequences of the New Constitutionalism50 of fading liberal regime founders seeking to entrench themselves constitutionally in the event their power ebbs away over time. All in all, the Indonesian experience shows all of the different causes of the creation of judicial review at work. There is probably no one single cause of the emergence of judicial review in Indonesia. One thing is certain, however, and that is that the Indonesians did not borrow judicial review from their former Dutch colonial masters. The Netherlands is one of the few countries in the world that does not have any system of judicial review at all.

IV. Conclusion In conclusion, Indonesia, today, is a constitutional democracy, which has attained surprising success in eliminating the hyper-​presidentialism of the pre-​ 1998 Suharto period both by implementing important checks and balances on presidential power; by separating executive, legislative, and judicial power; and by attaining rapidly an astonishing amount of decentralization since 1998. That degree of checks and balances and of decentralization has undoubtedly made Indonesians much freer than they were under President Suharto. The Constitutional Court seems to function well and enjoys the confidence of the people. Looked at from an American perspective, however, Indonesia is a somewhat illiberal constitutional democracy, which does not protect freedom of expression, freedom of religion, or economic freedoms adequately. Indonesian judicial review exists, as I have said, for: (1) rights from wrongs reasons; (2)  umpiring federalism and separation of powers reasons; (3)  because the Constitution of Indonesia is today sufficiently checked and balanced so that the Constitutional Court has political space within which to work; and 50 Ran Hirschl, Towards Juristocracy:  The Origins and Consequences of the New Constitutionalism (2007).

266  the History and growth of Judicial Review, Volume 2 (4) because Indonesia deliberately borrowed South Korea’s Constitutional Court, which in turn had been borrowed from the German Constitutional Court. The Constitutional Court of Indonesia is not, contrary to Professor Tom Ginsburg’s claim cited above, at footnote five, as liberal or western an institution as is the Constitutional Court of South Korea. I think the differences between the constitutional court caselaw of these two G-20 Nations most likely results from their different profiles as to religious belief. South Korea is: 56.1% no religion; 27.7% Christian, and 15.5% Buddhist. Indonesia, in contrast, is: 86.7% Islamic; 10.7% Christian; and 1.74% Hindu. South Korean religious values are much more like those in the United States than are Indonesia’s so it is not at all surprising that South Korean constitutional law reflects Enlightenment values more than does Indonesian constitutional law. Mongolia, the third East Asian Constitutional Court, which Tom Ginsburg referred to is: 53% Buddhist; and 38.6% no religion. I would, therefore, expect that Mongolian Constitutional Court’s caselaw, which I have not studied, would be somewhere in between South Korea’s and Indonesia’s in its commitment to liberal values. Japan is 62% no religion; 31% Buddhist; and 31% Shinto, which probably means that judicial review probably could work in Japan if that country’s Supreme Court was given the powers of a Kelsenian Supreme Court, and if citizen standing was created. It is precisely because Indonesia is the world’s most populous and peaceful Islamic country that we should rejoice over the triumph in Indonesia of a written constitution and Bill of Rights; of federalism, separation of powers, and a meaningful system of checks and balances; and to some degree of judicial review. The Constitution is the supreme law of Indonesia, and not the Koran. Indonesia is a real G-​20 constitutional democracy—far more so than are: Iran, Turkey, Saudi Arabia, or Egypt. Maybe Indonesia will light a spark that will spread to those Islamic countries as well.

Chapter Eleven

The European Union and the Council of Europe Up until now, I have discussed only common law and civil law jurisdictions from the British Empire to Germany, India, and Brazil. There are, however, two final supranational mixed civil law and common law jurisdictions, which are comparable in size, population, and GDP to the United States of America, to the former British Empire, to India, and to Brazil. Those jurisdictions are, of course, the European Union (EU): a confederation of twenty-​seven member states today that spans much of Europe; and the Council of Europe, a forty-​seven-​member supranational jurisdiction that includes 820 million citizens committed to an international treaty—​the European Convention on Human Rights (ECHR). This treaty is enforced by a very powerful international court, the European Court of Human Rights (ECtHR). I should note at the outset that these two entities, which have working systems of judicial review, are among the most important new systems of judicial review in the world to develop since World War II ended in 1945. I believe that they are equal in importance to the revolutionary system of judicial review in India and the elite bargain system of judicial review in Brazil. These two European judicial review systems, in my opinion, are examples of what Professor Bruce Ackerman calls evolutionary systems of judicial review in his pathbreaking book Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law.1 I would call them Hayekian spontaneous systems of order of the kind described by Friedrich Hayek in his three volume masterpiece, Law, Legislation, and Liberty. As it turns out, there is federalism umpiring judicial review going on even in the EU’s highest court, the European Court of Justice (ECJ) and just as importantly in the national courts of the EU’s member states. There is also federalism umpiring going on in the Council of Europe’s highest court, the ECtHR, which was created for rights from wrongs reasons. Professor Ran Hirschl’s hegemonic preservation theory and Professor Tom Ginsburg’s insurance 1 Bruce Ackerman, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law (2019).

The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0012

268  the History and growth of Judicial Review, Volume 2 and commitment models of the origins of judicial review do not best explain the birth and growth of judicial review in the ECJ and in the ECtHR, but the growth of these two post-​1945 systems of judicial review is explained by the phenomena of federalism umpiring and, to a much lesser degree, separation of powers umpiring, rights from wrongs, and borrowing, which we have seen in the earlier chapters of this two-​volume book series. I begin with the somewhat smaller, but more unified, European Union (EU), and its highest court, the ECJ; and I then turn, second, to the Council of Europe, and to its highest court, the ECtHR. It is important to note, at the outset, that I think there is a substantial difference between the ECJ and the ECtHR. The ECJ has turned itself into a genuine Constitutional Court, while the ECtHR remains only an international human rights treaty court. When the ECJ hands down a judgment and opinion that judgment and opinion will (almost) always be followed in all the courts of all twenty-​seven EU member states. The ECJ does not afford member states any margin of appreciation at all in blatant violation of the subsidiarity rule of the EU governing treaties. When the ECtHR hands down a judgment and opinion, however, the ECtHR often gives a huge “margin of appreciation” to the forty-​seven members of the Council of Europe, and there is a real chance that an ECtHR judgment might not be followed in the courts of the forty-​seven ECHR signatory countries. The ECtHR has upheld under its margin of appreciation doctrine France’s law forbidding Muslim women from wearing burkas, bans on same sex marriage, and the placement of crucifixes on Italian schoolhouse room walls. The United Kingdom has refused on multiple occasions to follow an ECtHR rule that would allow some prisoners to vote. The ECtHR is clearly a much weaker court than is the ECJ. So why have I lumped them together in this Chapter? The answer is essentially because of Brexit. Not only do the EU Treaties allow a single EU member nation to secede at any moment, for any reason, but one of the most populous and economically successful EU member states, the United Kingdom, just exercised that right to secede in January of 2020 and all the other 27-​member states acknowledged the legality of Brexit under the EU Treaties. Brexit means that the ECJ is a not yet a Constitutional Court of a fixed demos, but the ECJ is instead an international treaty court, like the ECtHR of a confederal government or international treaty organization. The EU remains only a confederation and not a truly federal government because Brexit shows that any country can, at any time, for any reason just leave the EU altogether. It is for this reason that I discuss the supra-​national court systems of the EU and of the Council of Europe in one concluding Chapter to my two-​ book series on The History and Growth of Judicial Review.

The European Union and the Council of Europe  269

I.  The European Union and the European Court of Justice I will first describe the institutions and structure of the European Union today in 2021 and, then, second, discuss the EU’s history and the history of the ECJ, and finally, and third, I will discuss the reasons why judicial review originated and grew with respect to the ECJ and why the ECJ was able eventually to enlist the national courts of the EU member states in its project of constitutionalizing the Treaty of Rome, which set up the EU in 1958. I should say at the outset that that the English language literature on the EU and the ECJ is immense, and I am familiar only with a few of the most important books and law review articles on the ECJ and on the development of judicial review in the EU.2 In writing this book chapter, I have mainly relied on the following sources: (1) J.H.H. Weiler, “The Transformation of Europe”; (2) Karen J. Alter, Establishing the Supremacy of European Law; (3) Alec Stone Sweet, The Judicial Construction of Europe; (4) Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe; (5) Paul Craig and Grainne de Burca, EU Law: Text, Cases, and Materials; (6) Neil Walker, “The Shifting Foundations of the European Union Constitution,” in Social and Political Foundations of Constitutions; and (7)  Werner Feld, The Court of the European Communities:  New Dimension in International Adjudication. I  neither teach nor write about EU law, and I have therefore followed the leading secondary sources listed above, as well as some additional books, which are cited herein.

A.  Institutions and Structure It must be acknowledged at the outset that the EU is more of a confederation than it is a nation-​state, but it does have its own binding laws, currency, flag, diplomatic representation, and an internal system of judicial review presided over by the ECJ. The EU is best described as being a supranational jurisdiction with a very real Constitution, which is enforced by judicial review. The EU is much more powerful than is a traditional treaty organization like the United Nations, but it is much less powerful than are the federal governments of the United States and Germany because:  (1) EU member nations have at any time the right to 2 H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991); Karen J.  Alter, Establishing the Supremacy of European Law (2001); Alec Stone Sweet, The Judicial Construction of Europe (2004); Alec Stone Sweet, Governing with Judges:  Constitutional Politics in Europe (2000); Paul Craig & Grainne de Burca, EU Law: Text, Cases, and Materials (2011); Neil Walker, The Shifting Foundations of the European Union Constitution, in Social and Political Foundations of Constitutions (Denis J. Galligan & Mila Versteeg eds., 2013); Werner Feld, The Court of the European Communities:  New Dimension in International Adjudication (1964).

270  the History and growth of Judicial Review, Volume 2 secede from the EU, as Brexit just demonstrated; and 2) because changes in the EU constitution as set forth in major treaties require the unanimous consent of all twenty-​seven EU member nations. The EU operates under a unified foreign and security policy, and it is much closer to being a federal nation-​state than are other international organizations like the United Nations or the Council of Europe. It is certainly more of a federal nation-​state than was the United States under the Articles of Confederation. Thirty-​two thousand people work for the EU in its capital city of Brussels, Belgium. The government of the United States under the Articles of Confederation did not have one-​twentieth of the number of employees as does the government of the EU. Nor did the government under the Articles of Confederation have as clever and as wily a court as the ECJ has turned out to be. In fact, under the Articles of Confederation, the United States had no federal courts at all. The government of the EU is a federal supranational government of powers delegated by the now twenty-​seven nation-​states, which for the moment retain sovereignty even though the foundational EU treaties have now been essentially constitutionalized. Any nation-​state that wants to can secede unilaterally from the EU at any time as the United Kingdom did in 2020 when Brexit became a reality. It is this ability of the member states to secede unilaterally and the requirement of unanimity to amend the EU Treaties, which makes it clear that the EU is a supranational confederation of sovereign nation-​states and not a federal government like the ones in the United States, India, Germany, or Brazil. A full description of the institutions and structure of the EU could easily fill a book, and anyone interested in those matters should read Simon Hix’s book The Political System of the European System.3 I will offer just a quick summary of the key EU institutions here. The EU government is headed by an executive branch known as the European Commission. It proposes and implements legislation and manages the day-​to-​ day business of the EU. The commission reports to a president, currently Ursula von der Leyen. The president of the commission is nominated by the European Council and elected by a majority of the 705-​member Parliament. The European Council of Ministers is the most powerful entity in the EU, and it sets the EU’s policy agenda and all twenty-​seven member states have a representative on the council. The council does not actually legislate per se although it recommends legislation, and it is the most powerful entity in the EU confederal regime. The EU Council of Ministers is most easily understood by Americans as being somewhat akin to the U.S. Senate in its power as in the extent to which it has its hands on all aspects of EU governance whether they are legislative, executive, or judicial in nature. The European Council uses a qualified majority system of voting



3

Simon Hix, The Political System of the European System (2nd ed. 2005).

The European Union and the Council of Europe  271 to account for the fact that EU members like Germany and France are more populous and have larger economies than does an EU member state like Belgium. The European Parliament is a 705-​member supranational legislature with members elected from all the EU member nations. There are supranational political parties, which form groupings in the European Parliament, and groupings in the EU Parliament are based on ideology and not on the nation-​state citizenship of the members of the Parliament. The EU Parliament has been an elected legislature since 1979. For a good discussion of the behavior of political parties in the European Parliament, see Simon Hix, Abdul G. Noury, and Gerard Roland, Democratic Politics in the European Parliament.4 Finally, there exists the ECJ, which is the highest judicial court in the EU and which has the judicial power. I will examine the role of that court in this chapter. Since 1985, there has existed within the EU an area called the Schengen Area, in which passport checks and other border checks common among nation-​states are suspended. The Schengen Area now includes twenty-​six nations of which twenty-​two are EU members. The EU nations of Bulgaria, Croatia, Cyprus, and Romania are slated to eventually join the Schengen Area, but Ireland is not. The non-​EU nations in the Schengen Area include Iceland, Liechtenstein, Norway, and Switzerland. The Schengen Area has been greatly strained by the passage of Syrian refugees into Europe, and, most recently, by the spread of the coronavirus. The EU also has an official currency, the euro, which is currently used by nineteen of the twenty-​seven member nations. The euro was first introduced on January 1, 1999, and so it has been in place for twenty-​one years. The euro is the second-​most important currency in the world after the American dollar. The creation of the euro has been quite hard on countries like Greece and Italy which use the same currency as Germany but have different economic policies and spending habits. Some have wondered whether the project of European integration should have been pursued in some other way than by the creation of a common EU currency at least so long as the member nations set their own national economic and fiscal policies. The EU is under attack at the moment by nationalist fringe political parties in France and in Germany, and the EU is not yet a federal nation-​state today. The United Kingdom’s decision to leave the EU is certainly a major cause for disappointment. Moreover, the German Constitutional Court has recently challenged the ECJ’s powers. But, the EU may yet succeed in unifying the most important countries in Continental Europe (as well as Ireland), and it may yet reflect a global trend toward democratic governance by international confederations on many continents with international courts and tribunals playing a key role.5 4 Simon Hix, Abdul G. Noury, & Gerard Roland, Democratice Politics in the European Parliament (2007). 5 See generally Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals 936 (2nd ed. 2000). A full mapping of international judicial and quasi-​judicial bodies can be found on the web page of the NYU Project on International Courts and

272  the History and growth of Judicial Review, Volume 2 The EU’s ECJ system of judicial review is by far and away the most successful supranational legal system anywhere in the world.6 It is possible to hope that the ECJ might eventually inspire other similar international systems of judicial review in developing democracies in Africa, Asia, and Latin America to attain supranational status. As Northwestern Professor Karen Alter writes, “[t]‌he EU’s legal system “works much like a domestic rule of law, where violations of the law are brought to court, legal decisions are respected, and the autonomous influence of law and legal rulings extends to the political process itself.”7 Therefore, the EU’s ECJ/​national courts system of judicial review deserves discussion in a separate subsection below, where I will discuss a partial history of the ECJ. The ECJ’s system of supranational judicial review is relevant to any future consideration of what gives rise to the birth of systems of judicial review in heavily populated and economically successful jurisdictions. The EU has a combined population of about 447  million inhabitants, and a total GDP that is slightly less than that of the United States, but that greatly exceeds that of China, India, Brazil, and of every other country in the world. The International Monetary Fund estimated the U.S. GDP per capita in 2018 as having been $62,518 and the EU GDP per capita in 2018 as having been $43,120 –​ and that was prior to Brexit, which has lowered the EU average. China’s GDP per capita in 2018 is only estimated to have been $9,771. The U.S. economy is thus much more powerful than is the EU’s or China’s once one factors in how many citizens live in and are producing wealth in each jurisdiction. For all the hype about 21st Century China dominating the U.S. and the E.U., I feel compelled to note that China remains very far behind the Western Powers today. The birth of judicial review in the EU is, thus in my opinion, of much greater interest than is the birth of judicial review in small atypical constitutional democracies. The small atypical democracies I have in mind are the ones I would most like to visit and to learn more about: 1) Switzerland, where I lived for a year, and which captured my heart when I was eight years old, and New Zealand, which I know is breathtakingly beautiful. The Swiss Constitution, with its reliance on referenda, and New Zealand’s Human Rights Statute would be great fun to study, and they should be studied, keeping all things in perspective. But, Switzerland and New Zealand do not tell us as much about how to build a transnational, free trade, liberal world order as does studying the EU; the

Tribunals. In addition to those courts listed in the text accompanying this footnote, other international judicial bodies include regional courts (European Court of Justice); regional human rights courts (The Inter-​American Court of Human Rights (1979)); and regional economic courts (Court of Justice of the Common Market for Eastern and Southern Africa (1998); Common Court of Justice and Arbitration of the Organization for the Harmonization of Corporate Law in Africa (1997); Central American Court of Justice (1994); Economic Court of the Commonwealth of Independent States (1993); Court of First Instance of the European Communities (1988); Court of Justice of the Andean Community (1984); Benelux Economic Union Court (1974)).

6

Jenny S. Martinez, Towards an International Judicial System, 56 Stan. L. Rev. 429, 438 (2003).

7 Alter, supra note 2.

The European Union and the Council of Europe  273 ECtHR; the U.S; Germany; India; Brazil; or Indonesia. For all their charms, the Swiss population is about 8.5 million and the New Zealand population is about 5.108 million. This makes means Switzerland has a population comparable to New Jersey while New Zealand has a population comparable to Wisconsin. It is for these reasons among others that I felt I could not responsibly write a book today about judicial review, which did not discuss the accomplishments of the European Court of Justice and the European Court of Human Rights. These two great international legal systems are of the greatest interest and importance to humanity and to a transnational, free trade, world order.

B.  History of the EU To understand the ECJ on a functional level, it is important to first understand the history of the EU and second the history of the ECJ. We must begin with European history, then discuss post-​1945 developments, and finally discuss the history of the EU itself. Two thousand years, ago much of the area, which presently constitutes the EU was united under the rule of the Roman Empire. The borders of the Roman Empire were set at the Rhine River in the North; at the boundary between Scotland and England, to the West excluding Ireland; and at the boundary of the Danube River to the East, including within the Empire Greece and much of Turkey as well as Palestine and Egypt. The Roman Empire in the West fell in 476 A.D., but the Roman Empire in the East, with its capital in Constantinople, lasted one thousand more years until the Islamic Turks subdued it in 1453 A.D. The memory of the trans-​European Roman Empire never died, and when the Empire in the East fell in 1453, the leaders of the Russian Empire claimed its mantle and ruled as Eastern Orthodox “Tsars,” a word that meant “Caesar” in Russian. In the West, Charlemagne proclaimed himself a new Roman Emperor in the West when he was crowned by the pope. After Charlemagne’s empire disintegrated, an entity called the Holy Roman Empire was set up in 962 A.D. Voltaire famously said of the Holy Roman Empire that it was a body which “was in no way holy, Roman, nor an empire!” The Holy Roman Empire was disbanded by the French Emperor Napoleon Bonaparte, in 1806, who tried to create his own version of the Roman Empire with himself as the emperor. This effort failed after Napoleon mistakenly invaded Russia and then, in 1815, lost the Battle of Waterloo and was exiled to St. Helena, an island off the coast of South Africa controlled by the United Kingdom. As early as the 1070s, the great civil law legal scholar Irnerius began teaching Roman law from a Byzantine text in the city of Bologna, Italy. The teaching of Roman law spread like wildfire all over Europe in the 1100s because European scholars spoke and wrote in Latin, which was the universal language of the European elites, and they overwhelmingly belonged to the Holy Roman Catholic

274  the History and growth of Judicial Review, Volume 2 and Apostolic Church. Roman law, astonishingly, was greeted by Europeans as a lost inheritance from an earlier and better age, and it displaced the crude legal systems of the various Germanic and French tribes, which had sacked and ended the Roman Empire in the West in 476 A.D. The triumphant revival of Roman law in Europe is the most astonishing originalist revival of a long dead legal text that I am aware of, ever, in human history. A Roman legal text, compiled in the 500s A.D., by the Byzantine tyrant Justinian, actually displaced the Germanic tribal law, which everyone had been following and living under for more than five hundred years! This is truly astonishing. Equally astonishing is the extension of Roman law to countries in Latin America and Asia, including Japan and South Korea. By the year 1500, the West was united by the fact that Roman law was triumphant in Continental Europe, and in Scotland; Latin was the language scholars used all over Europe to communicate with one another; and there was only one Holy Roman Catholic and Apostolic Church to which all Europeans belonged. This moment of unity was demolished in the 1500s by: (1) the Protestant and Catholic split into two separate Christian religions; and (2)  the rise of national languages, which replaced Latin, and which separated Europeans from their common heritage. The printing press allowed Bibles and scholarly books alike to be printed and read in the vernacular languages and that killed off Latin and left Europeans speaking many different languages and worshiping in many different churches. Whereas Europe was culturally united in every way, in 1500, even though it was governed in a very decentralized way, Europe was very culturally fragmented by the year, 1600, in ways that did not get undone until the rise to power of the supranational EU constitution between 1963 and 1989. Even so, Europeans still felt that they experienced the Renaissance and the Enlightenment, together, as well as the great scientific advances made by European men like Copernicus, Galileo, and Newton. The Enlightenment and the scientific discoveries of the seventeenth and eighteenth centuries eased the problems caused by the Protestant and Catholic split by causing most European elites to become quite secular, scientific, and empirical in their outlook. Eventually, nationalism came to the foreground as Europeans used the French Revolution and Italian and German reunification as a way to get rid of feudalism for Enlightenment equality reasons. Unfortunately, nationalism nearly ruined Europe by leading to World War I and World War II, and to Hitler’s National Socialism. As a result, many Europeans, in 1945, including Winston Churchill, talked openly about the desirability of creating a United States of Europe. There was open pan-​European sentiment in the nineteenth century, as well as the nationalism, which was evident in the reunifications of Italy and Germany. Many Christian Democrats favored some form of EU during the nineteenth century as Wolfram Kaiser argues in Christian Democracy and the Origins

The European Union and the Council of Europe  275 of European Union.8 There was even in the nineteenth century a Pan-​Europa movement. Following the two world wars, European leaders became convinced that the road to lasting peace in Europe required that a plan be developed to unite Europe’s most belligerent nations—​France and Germany.9 Between the Franco-​ Prussian war of 1870 and the end of World War II, in 1945, France and Germany had fought three ruinous wars with each other. Progress in Europe made it imperative that economic and political institutions be built that would ensure peace and economic cooperation between France and Germany. The great French political economist and diplomat Jean Monnet worked behind the scenes after World War II to create the European Coal and Steel Community (ECSC), which was a forerunner of the EU, in 1951. Six nations—​ Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany—​were members of this initial economic pact. Monnet had high hopes that with the ECSC, he had set in motion a transnational process, which would eventually end with a United States of Europe. In 1950, the French Foreign Minister Robert Schuman proposed a union of all Europe, the first step of which would be the integration of the coal and steel industries of Western Europe. This also helped to lead, in 1951, to creation of the ECSC. This economic union was confirmed in the Treaty of Paris. The ECSC was a success, which led the six founding ECSC nations to integrate other elements of their countries’ respective economies. On March 25, 1957, the same six countries signed the Treaty of Rome creating the European Economic Community (EEC) and the European Atomic Energy Community (Euratom), which eventually became known as the EU. The Treaty of Rome came into effect on January 1, 1958. Fortunately, for the EEC, Charles de Gaulle did not come to power in France until May of 1958, after the Treaty of Rome had already gone into effect. De Gaulle was an ardent French nationalist who would have viscerally disliked what the EU has now become. De Gaulle twice in the 1960s vetoed efforts by the United Kingdom to join the EEC, and he hampered EEC autonomy in a whole host of ways. It was only after de Gaulle’s retirement in 1969 that the EU would have the breathing space to take off. The six nations that agreed to the Treaty of Rome thought that all they were doing was signing an ordinary international law treaty like the treaty establishing the United Nations. They neither understood, nor intended to cause, the constitutionalization of that treaty; the creation of a supranational government; nor did they bless the ECJ/​national court coalition, which has enforced EU law 8 Wolfram Kaiser, Christian Democracy and the Origins of European Union 12–​41 (2007). 9 Wolfram Kaiser, European Union History: Themes and Debates (2011).

276  the History and growth of Judicial Review, Volume 2 against the twenty-​seven member nations since 1989. The six initial member states meant only to eliminate free trade barriers among themselves and nothing more. De Gaulle effectively prevented even free trade from happening among the initial six member nations between 1958 and 1969 due to his protectionist policies favoring French farmers and industry. In 1967, the institutions set up by the Treaty of Rome were formally merged together into a single new federal entity called the European Community (EC). The 1967 agreement led to the creation of a single executive commission and to the creation of a single Council of Ministers in which each nation-​state today votes by qualified majority voting. On April 23, 1972, new French President Georges Pompidou held a referendum asking French voters to allow Denmark, Ireland, Norway, and the United Kingdom to join the European Community—​an outcome that President Pompidou supported, unlike former French President Charles de Gaulle. French voters by a 63.8 percent margin on a turnout of 60.2 percent of all voters said “yes.” As a result, Denmark, Ireland, Norway, and the United Kingdom joined the EC in 1973. President Pompidou welcomed the United Kingdom, which had, by then, been trying for a decade to join the EU, into the club. The United Kingdom was eager to join because its economy was being outperformed by the economies of the EC—​a phenomenon that U.K. Prime Minister Boris Johnson will soon be blamed for as a result of Brexit. In 1979, the EU Parliament finally became a directly elected, rather than an appointive, legislature for the EC. Members of the EU Parliament are elected to serve for a five-​year term. The EC Parliament had its origins in the appointive Common Assembly of the European Coal and Steel Community. The EC Parliament is a very weak legislature, which uses the ruinous electoral system of proportional representation of which nothing good can, or ever has, come. Between 1973 and 2004, twenty-​one countries including the United Kingdom, the Scandinavian countries, Spain and Portugal (after the fall of fascism), and many Eastern and Central European countries (after the fall of communism) joined the EC, which eventually renamed itself as the EU. In 1992, the members of the EU signed the Treaty of Maastricht, which gave the European Union its name. This treaty greatly expanded the powers of the EU government paving the way for the later adoption of the euro as the EU’s currency. The Maastricht Treaty created two new pillars of EU law on Common Foreign and Security Policy and on Cooperation in the Fields of Justice and Home Affairs. In 2007, after French and Dutch voters rejected a proposed European Constitution in referenda, the EU nations signed the Treaty of Lisbon, which amends the Maastricht Treaty and which allows a move away from unanimity and toward qualified majority voting as to countless policy matters within the jurisdiction of the Council of Ministers. The treaty made the EU’s Charter of

The European Union and the Council of Europe  277 Fundamental Rights a judicially enforceable Bill of Rights for the EU, alleviating concerns, for example, on the German Constitutional Court, about giving the EU so much power when it did not have a judicially enforceable Bill of Rights. The decision to give the EU a judicially enforceable Bill of Rights was motivated by the fact that, by 2007, almost every nation in Europe, including even the United Kingdom, already had a judicially enforceable Bill of Rights. Various opt-​ outs were created for the United Kingdom and for Ireland. The United Kingdom, under the idiotic government of Prime Minister David Cameron, held a referendum in June 2016 on whether the United Kingdom should leave the EU, as a few diehard members of the Conservative Party wanted it to do. Prime Minister David Cameron campaigned in favor of remaining in the EU, but he lost when 52 percent of those voting voted to leave while only 48 percent of those voting voted to remain. Cameron resigned, was replaced by a feckless leader Theresa May, who was followed by the current Prime Minister Boris Johnson. Boris Johnson won a huge majority in national elections in the United Kingdom held in December of 2019. As a result, Prime Minister Johnson caused Brexit to become effective in 2020. The United Kingdom and the EU have now successfully negotiated a free trade agreement amongst themselves, and I predict that before too long the United Kingdom will conclude that Brexit was a mistake. There are very good reasons why the United Kingdom tried three times to join the EU between 1963 and 1973, when it was finally allowed to join, thanks to President Pompidou and to French voters. The passage of time, since 1973, has only made it even more imperative than it was in the 1960s, for the United Kingdom to be a member nation of the EU. I expect that once confronted with the economic consequences of Brexit, one year from now, U.K. voters will come to rue the day they voted by a tiny margin in favor of Brexit. The ECJ is the highest court in the EU with respect to all matters of EU law, and it polices horizontal boundary lines among EU institutions as well as working with the national courts of the twenty-​seven EU member nations on policing federalism boundary lines between EU law, which is supreme; and national law, which is subordinate to EU law. The ECJ consists of one judge per member state, and it hears cases in panels of three, five, or fifteen.10 The ECJ reviews the validity of decisions of the European Commission, which is in effect the executive arm of the EU government.11 It also reviews European directives and regulations passed by the European Council of Ministers.12 The ECJ has the power to hear challenges brought by private litigants, challenges brought by member nation-​states, and



10

Kaiser, supra note 9. Alter, supra note 2, at 6. 12 Article 262, The Treat of the Functioning of the European Union. 11

278  the History and growth of Judicial Review, Volume 2 challenges brought by other European institutions to the legality of acts taken by European institutions.13 The ECJ also has the power to decide separation of powers disputes among the council, the commission, and the parliament.14 The EU has a strong legal system, which emphatically includes a rich history of judicial review of the rights and obligations of the various EU member states and of the citizens of the confederation, especially since the Treaty of Lisbon constitutionalized the EU’s Charter of Fundamental Rights, which can be enforced by judicial review. Judicial review and the ECJ’s power, however, grew especially between 1963 and 1989, and the ECJ’s powers were not nearly as robust, originally, as they are today, nor did the nations that signed the Treaty of Rome intend for the ECJ’s powers to be robust. The EU’s biggest problem, which was a cause of Brexit, is that it suffers from a very serious democracy deficit. Most laws and policies are approved by the twenty-​seven-​member Council of Ministers and are implemented by the European Commission, which is a totally unelected body. The commission runs the EU on a daily basis, yet no European voters get to vote directly for the president of the European Commission who is instead picked by the feckless EU Parliament. This is quite frankly an absurd and unacceptable state of affairs. The European Parliament is elected by the voters of Europe using the awful electoral system of proportional representation, but the Parliament has almost no important power. Moreover, elections to the EU Parliament are a sideshow in the twenty-​seven nation-​states, which are members of the EU. Typically, only voters protesting the policies of the current government of the twenty-​seven EU nation-​states even bother to vote in elections to the EU Parliament. As a result, that legislature is filled with cranks and malcontents. The EU’s most urgent need going forward is to amend the treaties to correct the democracy deficit. I favor doing this by allowing European voters to elect directly the president of the European Union with a runoff election between the two highest votes getters, which would ensure that the final winner would have the support of at least 51 percent of all EU voters. The publicity surrounding such an election, coupled with charismatic appeals for votes, coupled with the real formation of an EU-​wide two-​party system, would legitimate the EU government in a way that the mere election of a prime minister by the current EU Parliament would never do. While presidentialism has proven to be dangerous in countries like those in Latin America, it would not be dangerous in the EU where an elected president would face many checks and balances. So long as the United



13 14

Alter, supra note 2, at 6. Id.

The European Union and the Council of Europe  279 Kingdom and France retain their nuclear arsenals, which they should do, there is no chance at all of a presidential dictatorship in the EU.

C.  History of the ECJ The ECJ began as a weak institution with limited powers that was meant to be weak. But, thanks to some bold decisions by justices sitting on the ECJ, the court gradually transformed itself into being the main umpire of the scope of EU law. It enlisted the national courts of the member states between 1963 and 1989 to join it in enforcing EU law in a fascinating story of a federal court empowering itself, and of the national courts empowering themselves, vis-​à-​vis national legislatures and executive branch officials. The EU went from having judicial review only in name, in 1963, to having meaningful judicial review by which member states were made to respect their obligations to both to the EU and to their citizens by 1989. The emergence of consequential judicial review in the EU is very much a story of a court defining its own role and empowering itself to fulfill that role, first as an umpire between member states, and eventually as an umpire policing the individual rights of all citizens of the EU against government interference. For a thought-​provoking discussion of the phenomenon of the Europeanization of national law, see Dieter Grimm, Constitutionalism: Past, Present, and Future.15 One final word about the ECJ of an introductory sort is in order. The ECJ is, in my opinion, in 2021 by far and away the most successful and powerful institution in the EU government. The EU Parliament is virtually powerless, and the EU Commission totally lacks democratic legitimacy. The legislative and executive structures of the EU are thus a controversial mess while the judicial structure of the EU under the ECJ has done most of the EU’s work of actually integrating the economies of the EU nations. The EU Council of Ministers, on which each of the twenty-​seven member states have a representative, is too unwieldy a structure to accomplish very much. Thus the huge success story of the EU is largely due to the huge success story of the ECJ, to its co-​optation of the national courts of the EU member states, and to its system of what Professor Martin Shapiro and I would call a system of federalism umpiring. Indeed, the ECJ has proven to be so powerful that Dieter Grimm notes that countries like Germany have carved out a reserved sphere from EU law for their own national constitutions and bills of rights.16



15

16

Dieter Grimm, Constitutionalism: Past, Present, and Future 271–​311 (2016). Id. at 282–​94.

280  the History and growth of Judicial Review, Volume 2

II.  The Emergence of Judicial Review in the European Union The idea of a supranational European Court was first introduced in 1951 with the establishment of the European Coal and Steel Community Court to police the Treaty of Paris and the newly conceived European Coal and Steel Community (ECSC).17 The model that the Framers of the Court had in mind was the French Conseil d’Etat, which is an administrative law court that keeps the president and the National Assembly of France from encroaching on each other’s turf.18 The Framers of the ECSC saw the ECJ as an institution that would protect the six member nations and private businesses from excessive regulation by the ECSC.19 It was intended that few cases should be heard by the new court, and in the 1960s and early 1970s, the ECJ heard very few cases, and its most important doctrines of the direct effect of European law and of the supremacy of European law over the law of the EEC member nations were not accepted by national courts or by scholars.20 With the signing of the Treaty of Rome, in 1957, creating the EEC and the European Atomic Energy Community in 1958, the EU’s six original member states21 agreed to vest more supranational powers in the communal European institutions.22 The ECJ emerged as the “new” judicial organ vested with the power to defend the nation-​states when they complained about excessive EEC governance. Most Europeans thought of the ECJ as being substantially similar to the Coal and Steel Community Court, which had only a limited role.23 It is very important to note here several foundational points about just how limited the Treaty of Rome really was when the EEC came into operation in 1958. First, there was no provision in the Treaty of Rome, which specifically said that EU law would act directly on the people of Europe as opposed to imposing obligations on the six member nations. Second, there was no provision of the Treaty of Rome, which explicitly said that EEC law was supreme over the law of the member states. And, third, the Treaty of Rome was understood by all six of 17 Id. at 5. See also Feld, supra note 2. 18 Alter, supra note 2, at 5. 19 Id. at 6. 20 Id. at 1. 21 France, West Germany, Italy, Belgium, the Netherlands, and Luxembourg. Id. at 1. 22 Id. at 2 (explaining the difference between the ECSC and the ECJ is the mandate of the court’s policing power. The ECSC had jurisdiction to police the Treaty of Paris, while the ECJ has jurisdiction to police both the Treaty of Paris and the Treaty of Rome. However, “the transformation did not entail any major organizational changes”). 23 Id. at 2 (explaining the difference between the ECSC and the ECJ is the mandate of the Court’s policing power. The ECSC had jurisdiction to police the Treaty of Paris, while the ECJ has jurisdiction to police both the Treaty of Paris and the Treaty of Rome. However, “the transformation did not entail any major organizational changes”).

The European Union and the Council of Europe  281 the nations, which signed it, as only being a treaty like the treaties by which countries joined the United Nations, which could be altered in a nation-​state by subsequent legislation enacted under the traditional doctrine of lex posterior derogate legi apriori. (a statute enacted later in time than a treaty trumps the treaty).24 The ECJ was empowered, as had been the Coal and Steel Court, to exercise the authority to review the validity of European directives, commission decisions, and regulations passed by the Council of Ministers on which each member state had one vote.25 The ECJ’s job was to check the power of EEC institutions and not to insinuate EU power into the national law of the six member states. Although the ECJ’s role was modified during the negotiations that led to the Treaty of Rome, its central focus remained the same as it had been previously.26 The Coal and Steel Community Court had not been a powerful institution, and no one when the ECJ was created expected that it would ever have much power either. Although the transformation from Coal and Steel Community Court to the ECJ led to few actual changes, the modern ECJ is very different from the ECJ that was originally envisioned by the six member states in 1958. It is widely accepted that the court was created as an umpire and “as a check on the powers of the supranational institutions.”27 Its judicial function was to ensure that the national governments stayed faithful to terms of the treaties and to umpire disputes among member states. What has changed over time, however, is the extent to which the ECJ has been called upon to adjudicate disputes, the ease of access to the court, the status of the ECJ’s rulings, and the extent to which the ECJ’s rulings are enforced. In short, from its inception to the current day, the scope of the ECJ’s actual power underwent a total transformation. My Northwestern University colleague, Professor Karen Alter, explains in her leading and pathbreaking book on this subject, Establishing the Supremacy of European Law, that the ECJ was designed to hear very few cases, that at the outset it did hear very few cases, and that the original understanding of the parties, which signed the Treaty of Rome, was that they were creating a very weak EEC system of judicial review.28 Adding to the problem of ECJ weakness was the problem of infrequent use of the court to adjudicate matters. In addition, the ECJ was created when Continental Europe had a very limited and restrained vision of

24 Id. at 24. 25 Id. at 2 (explaining the difference between the ECSC and the ECJ is the mandate of the court’s policing power. The ECSC had jurisdiction to police the Treaty of Paris, while the ECJ has jurisdiction to police both the Treaty of Paris and the Treaty of Rome. However, “the transformation did not entail any major organizational changes”). 26 Id. 27 Id. at 5. 28 Id. at 1.

282  the History and growth of Judicial Review, Volume 2 the role of judges due to the countries that signed the Treaty of Rome in 1957 all being civil law jurisdictions. Article 234 of the Treaty of Rome allows any national court to refer a case to the ECJ. And, it obliges national courts of last instance to refer cases to the ECJ whenever there is a question raised about European law.29 The ECJ can also acquire jurisdiction over a case when the commission brings a charge against a member state using the Treaty of Rome’s infringement procedure.30 This power was not only given to the commission however. Individual member states were also allowed to raise cases against each other.31 In its original form, then, the ECJ was explicitly designed to be a body that was charged with umpiring disputes between EEC institutions or among nation-​state actors. Originally, only member states, the commission, and the various national courts had standing to bring a case before the ECJ. The ECJ was in the beginning an umpire for European Community federalism disputes. Despite the fact that the ECJ was created to be an umpire among state actors, the new court was not initially used very much by the European Community.32 For example, between 1960 and 1969, the court was not once called to interpret a dispute over European law between member states.33 This led inevitably to national governments assuming the freedom to offer their own interpretations of European law, which in turn led to politicized interpretations of a nationalistic and protectionist sort.34 Absent clear guidance from the ECJ, the European Community treaties were initially more advisory than they were binding. The ECJ not only lacked real power to interpret community law. It also lacked the power to enforce any kind of decision that it did render. The underutilization of the court and its limited powers of enforcement system were intentionally kept in place to protect the national sovereignty of the original six member states.35 The ECJ, in its original form, then possessed the power of judicial review in name only. In practice, the ECJ’s judicial review, umpiring mechanism was underused, ignored, and defied by the nation-​state governments of the EEC. Those governments worked in practice to promote ruling elite ideas of nationalism, sovereignty, and of a lax commitment to the newly formed Union and the obligations that went with that commitment. The ECJ eventually, however, transformed itself from an institution with the power of judicial review in name only, to a powerhouse court with an



29

Id. at 34. Id. at 8. 31 Id. at 8. 32 Id. at 6. 33 Id. at 15, Table 1.2. 34 Id. at 16. 35 Id. at 16. 30

The European Union and the Council of Europe  283 authoritative presence and real power to review the actions of member states, examine national legislation, and ensure compliance with community laws. The ECJ claimed the power of meaningful judicial review slowly, beginning with a series of bold judicial interpretations in 1962, in 1963, and in 1964.36 The ECJ actually empowered itself, despite the EU’s original member state’s plan for a weak court that would preserve nationalism. The ECJ enlarged the scope of its powers of judicial review over the fierce opposition of many national elites.

III.  Expansion of Judicial Review in the European Union Meaningful ECJ judicial review emerged from the actions of the court itself. The ECJ increased its judicial review powers: (1) by recognizing the access of private litigants to the European Community’s legal system to challenge national policies through the Direct Effect Doctrine, and (2) by establishing European Community law as supreme to national laws through the Supremacy Doctrine.37 These two ECJ-​fashioned legal doctrines are considered to be the critical legal doctrines that led eventually to the empowerment of the court and to its ability to conduct judicial review.38 Both of these changes made ECJ judicial review more consequential and more frequent, thus empowering the court. Both of these revolutions in doctrine occurred through court interpretations. The ECJ-​created Doctrine of Direct Effect is responsible for granting private litigants’ access to the ECJ and establishing that individual rights exist, which are based on the Treaty of Rome, and which could be raised before national courts as well as the ECJ. The Supremacy Doctrine established EU law as supreme to national law in all instances. It said that the traditional doctrine of treaty interpretation of lex posterior derogate legi apriori did not apply to the Treaty of Rome because EEC law was supreme over member nation law even though there was no supremacy clause to be found anywhere in the Treaty of Rome. These ECJ-​ fashioned legal doctrines are considered to be revolutionary, and they led to the empowerment of the ECJ to conduct judicial review.39 As noted before, originally European law limited standing to bring cases before the ECJ to state actors. Article 234 of the Treaty of Rome allowed any national court to refer a case to the ECJ, and it obliged national courts of last instance to refer cases whenever there was a question about European law. Article 234 also gave standing to the commission to bring a charge against a member



36

Id. at 3. Id. at 16–​17. 38 Id. at 17. 39 Id. at 17. 37

284  the History and growth of Judicial Review, Volume 2 state, and it also allowed individual member states to raise claims against each other.40 Originally, only member states, the commission, and the national courts had standing to bring cases in the ECJ. The Doctrine of Direct Effect was established by the ECJ in the 1963 Van Gend en Loos v. Nederlandse Administratie der Belastingen (“Van Gend en Loos”) decision.41 The case dealt with a rather technical issue of whether the Netherlands could apply customs tariffs and duties on an individual transporting German goods through the Netherlands despite Article 12 of the Treaty of Rome, which instructed member states to refrain from introducing new tariffs in between states.42 The ECJ held that the Netherlands could not impose tariffs on an individual. The monumental effect of the Van Gend en Loos decision, however, was that it opened up access to the ECJ to individuals and thus gave much more meaning to the ECJ’s power of judicial review. The ECJ reached this conclusion relying on the purposes underlying the Treaty of Rome, which had set up the six-​ member nation Common Market, while ignoring the text of the Treaty of Rome. The ECJ held that European Community law must be “interpreted as producing direct effects and [as] creating individual rights which national courts must protect.”43 The court held that the spirit of the Treaty of Rome produces direct effects on the lives of individuals and that it therefore guarantees individual rights in much the same fashion as does the United States’ Constitution and Bill of Rights. The court concluded that it had an obligation to protect those individual rights as to the allocation of national and EEC power through what it called the doctrine of “direct effect.” The ECJ further held that private litigants were entitled to redressability when their rights were violated. The Doctrine of Direct Effect established that European law, through provisions of the Treaty of Rome,44 created rights for individuals that could be invoked before national courts and before the ECJ itself.45 As Professor Karen Alter bluntly explains, the ECJ held that “private litigants have a right to have international treaties adhered to by their government,” and they have standing to sue when the government is not compliant with EEC law.46 Opening the ECJ to private litigants and guaranteeing individual rights for 40 Id. at 34. 41 NV Algemene Transport-​en Expeditie Onderneming Van Gend en Loos v.  Nederlandse administratie der belastingen [1963] ECR 1. 42 Article 12 (replaced by Article 30 AFEU) stated “Member States shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.” See also Case 26/​62, Van Gend en Loos, [1963] E.C.R. 1 (1963). 43 See Case 26/​62, Van Gend en Loos, [1963] E.C.R. 1 (1963). 44 The ECJ decides which provisions produce direct effect on a case-​by-​case basis. Alter, supra note 2, at 17. 45 Alter, supra note 2, at 17. 46 Id. at 18.

The European Union and the Council of Europe  285 citizens of the EU in their national courts not only increased the number of cases heard by the ECJ, but it also provided a new venue in which errant national legislation could be challenged. This case was, in effect, the Marbury v. Madison, 5 U.S. 137 (1803), of EU law. The second important empowering legal doctrine announced by the ECJ was the Supremacy Doctrine. The Supremacy Doctrine comes from the case of Costa v. ENEL (“Costa”).47 Mr. Costa, an Italian citizen, attempted to challenge the nationalization of an Italian energy company in light of a European Treaty forbidding state distortion of the market arguing that he was owed a mere $3 in court.48 The Italian Constitutional Court had already ruled that Mr. Costa’s case ought never to have been sent to the ECJ and that EEC law was not supreme over Italian law. The ECJ, however, very cleverly held in Costa v. ENEL that individuals did have a right to invoke European law against a member nation-​state and that European Community law is supreme over the law of the nation-​states. The ECJ concluded that the Italian nationalization act at issue in Costa v. ENEL did not violate EEC law so it issued no order in Costa v. ENEL, which Italy could have disobeyed. As Professor Alter points out, the ECJ asserted power in a Marbury v. Madison-​like way vis-​à-​vis the national courts in a case where it reached the same holding as did the national courts but for eye-​popping reasons. The Italian Constitutional Court could therefore do nothing about the ECJ’s opinion in Costa v. ENEL except to sit on the sidelines and fume.49 This decision is, in effect, the Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), of EU law. The significance of the Costa decision was twofold. First, it was an overt statement of the supremacy of EEC law over national laws enacted even after the 1957 signing of the Treaty of Rome. Second, the Costa decision established that national courts were obligated to follow and apply EEC law as supreme over even their own national laws and constitutions. Before the Supremacy Doctrine, the court systems of the six EC member states thought that national courts ought to decide cases based on national law where there was a conflict between European law and national law.50 After Costa, the ECJ made it clear that the national courts had to apply and give supremacy to EEC law over their own national constitutional and statutory law.51 The ECJ’s 1964 Supremacy Doctrine established that in the ECJ’s opinion, EEC law was supreme to the law of the six national member states, thus ensuring that those six member states could not pass any law that conflicted with their

47 Case 6/​64, Flaminio Costa v ENEL [1964] ECR 585, 593. 48 Id. 49 Alter, supra note 2, at 19. 50 Id. at 23. 51 Amministrazione delle Finanze dello Stato v. Simmenthal SpA (II), ECJ Case 106/​77, (1978) ECR 629; [1978] CMLR 263, 283.

286  the History and growth of Judicial Review, Volume 2 European legal obligations.52 The Supremacy Doctrine established that where EEC law and national law conflict, EEC law takes precedence. The Supremacy Doctrine empowered the ECJ. It also gave more teeth to the ECJ’s judicial review system by ensuring that the court’s decisions would not be ignored or undercut by national law. What was the impact of the ECJ’s direct effects and supremacy doctrines? Judge Federico Mancini of the ECJ writes persuasively that “[w]‌ithout direct effect, we would have a very different Community today—​a more obscure, more remote Community barely distinguishable from so many other international organizations whose existence passes unnoticed by ordinary citizens. . . .”53 Judge Mancini’s thoughts on the expansion of judicial review were echoed by a preeminent EU scholar, Eric Stein. Both Judge Mancini and Stein agree that the direct effect and supremacy doctrines gave teeth and meaning to the ECJ’s vested power of judicial review.54 Stein wrote that “[i]‌t is safe to say, with the benefit of hindsight, that had the Court followed the Governments [and not established the direct effect and supremacy of European Law], Community law would have remained an abstract skeleton, and a great variety and number of Treaty violations would have remained undisclosed and unredressed.”55 The ECJ deliberately and self-​consciously departed from the path set out by the elite that had led to the court’s original creation. In doing so, the ECJ was particularly led by its French judge, Robert Lecourt, who used a purposive approach to jurisprudence that was quite alien to the approach used, in general, by Continental European judges who traditionally had acted in a very formalistic and restrained way because they were a part of the civil law tradition.56 Thanks to the ECJ’s bold decisions establishing direct effect and supremacy, the ECJ is far from being an “abstract skeleton,” and it exercises judicial review with as much authority as does the Supreme Court of the United States. Even though the ECJ has no autonomous power to alter its own rules of procedure or to stray from them, the ECJ succeeded in fundamentally changing the functioning of the European legal system.57 The court opened up the European legal system to private litigants and very gradually established ECJ decrees as supreme to national legislation. These bold unilateral changes marked the emergence of a de facto system of judicial review in the EU devoted to the umpiring 52 Alter, supra note 2, at 17. 53 Id. at 34. 54 Id. at 15–​16 (quoting Mancini and Keeling 16 and 183 (1994)). 55 Eric Stein, Lawyers, Judges, and the Making of a Transnational Constitution, 23 Common Market L. Rev. 6 (1981). 56 Alter, supra note 2, at 20. 57 David Edward, Reform of Article 234 Procedure: The Limits of the Possible, in Judicial Review in European Union Law, Vol. 1. 120 (David O’Keeffe ed., 2000)(explaining that amendments to the rules of the ECJ require unanimous power that the ECJ has made approval of the member states in Councilor at an Intergovernmental Conference).

The European Union and the Council of Europe  287 of federalism disputes between the EU and its (by now) twenty-​seven member states. The need for a real and effective federalism umpire overrode the original decision of the six founding member countries not to have a very powerful court, but instead to have a court that would check and balance EEC institutions. In the EU context, the need for a federalism umpire gave birth to the institution of ECJ judicial review.58 This process resembles the emergence of the Privy Council as a federalism umpire for the thirteen North American British colonies from 1660 to 1776, and the emergence of the U.S. Supreme Court as a federalism umpire from 1789 to 1861. The text of the Treaty of Rome and the original understanding of its signatories did not envision vigorous ECJ judicial review, but the need for a federalism umpire gave birth to such an institution anyway despite the contrary preferences of national elites. The ECJ fulfilled the then newly created EEC’s need for an umpire between member states, and it made itself a much needed advocate for the individual rights of citizens of the EEC where EEC law and national law conflicted. There was, however, a huge unanswered question in 1964, which was would the national courts of the member states accept and implement the ECJ’s new doctrines of direct effect and of the supremacy of EEC law? The initial answer in the 1960s and early 1970s was “no.”59 One important interest group, which came out on the ECJ’s side with respect to the doctrines of direct effect and of supremacy were scholars of European law. Scholarship is an especially important source of law in the civil law tradition, a source that is more important than is precedent. Scholars of European law, as Professor Karen Alter points out, turned out to be a powerful interest group that lobbied the national courts to accept the doctrines of direct effect and of supremacy.60 Such scholars would praise national court opinions that followed the ECJ’s lead, and they would criticize national court opinions that did not follow the ECJ’s lead. Professor Alter examines the process from 1963 to 1989 whereby Germany and France gradually came to accept the doctrine of direct effects and of the supremacy of what is now EU law over national law. She explains that German courts have sent by far the most references to the ECJ, and the German Constitutional Court was, in 1971, “the first national supreme court to uphold the supremacy of EC law in Germany.”61 Strikingly, in Germany, Professor Alter found that lower courts used references to the ECJ to challenge national law, and they used the national court system to challenge EU law.62 The tax courts,

58

Alter, supra note 2, at 5. Id. at 21–​27. 60 Id. at 57–​58. 61 Id. at 64. 62 Id. at 66. 59

288  the History and growth of Judicial Review, Volume 2 in particular, in the 1960s and 1970s generated 60 percent of all references to the ECJ even though only 3 percent of German judges sit on tax courts.63 German law thus had a huge impact on the ECJ in part because Germans are very litigious and in part because the German Constitutional Court has very broad jurisdiction compared to the French Conseil Constitutionelle and to the Italian Constitutional Court.64 The German Constitutional Court has jurisdiction to hear: (1) concrete cases raising a constitutional problem referred by another national court; (2) individual constitutional complaints; (3) federal-​state disputes referred by state governments; and (4) abstract review at the request of a state government or of one-​third of the Bundestag. In contrast, prior to 2008, the French Conseil Constitutionelle could hear only challenges brought by sixty or more members of either house to the constitutionality of a law before the law was actually promulgated. And, the Italian Constitutional Court does not have jurisdiction to hear individual constitutional complaints.65 German law with respect to the ECJ and EU law went through five separate rounds according to Professor Alter.66 In round 1, between 1963 and 1967, Germany concluded that Article 24 of the Basic Law allowed Germany to be a member of the EEC and that European regulations were binding in Germany. This was a stretch because Article 24 of the Basic Law had been meant to apply to collective security organizations and not to economic organizations. In round 2, between 1965 and 1971, Germany agreed with Costa v. ENEL that European law was supreme over subsequent national law, even though that is not normally the rule for treaty interpretation. In round 3, between 1971 and 1985 the, Solang I and Solang 2 decisions found Article 24 limits to the amount of sovereignty transferred by Germany to the EU. In round 4, between 1981 and 1987, the German Constitutional Court directed other German courts that they had a constitutional obligation under the German Basic Law to refer cases to the ECJ and to follow its rulings. Finally, in round 5, between 1993 and 2000, the German Constitutional Court emphasized that it had the power to determine how much EU law applied in Germany. Professor Alter discusses these five rounds on page 73 of her book, and she elaborates on them in detail from page 73 to page 117.67 There is no need to go into any more detail than this about Germany’s gradual acceptance of EU law. It suffices to say that German court decisions as to the ECJ’s power and role in Germany have been evolving continuously from 1963 to 2021.68 On May 2, 2020, the German Constitutional Court scared the daylights out of the ECJ and the EU by declaring that Germany was not bound by EU law in a case that involved an economically critical form of bond buying. Arguments about EU supremacy will continue to surface through Brexit or this recent German

63

Id. at 68. Id. at 70–​71. 65 Id. 66 Id. at 73. 67 Id. at 73 and 73–​117. 68 Id. at 117. 64

The European Union and the Council of Europe  289 Constitutional Court opinion until the EU’s democracy deficit problem is eliminated and that will only happen when countries start hold popular advisory votes on who should be the next President of the European Commission. The world needs for Europeans to start electing their own president in the way that France, Brazil, Mexico, South Korea, Indonesia, South Africa do and in the way that parliamentary democracies like Germany, Italy, and Japan pick Prime Ministers. For many years, a major German concern was the absence of an EU Bill of Rights. The German Constitutional Court worried that EU laws might violate the Basic Law’s Bill of Rights, and it worried in particular that EU laws might come in conflict with the unamendable aspects of the Basic Law, in which case the German Constitutional Court would not be able to implement EU law even if it wanted to. The adoption by the Treaty of Lisbon of a judicially enforceable EU Bill of Rights has eased German concerns on this point. Professor Alter next examines French judicial acceptance of EU law supremacy in ­chapter  4 of her book. French judicial acceptance of EU law supremacy was much more reticent than was German judicial acceptance.69 She notes that France has three Supreme Courts: the Conseil Constitutionelle, the Conseil D’Etat, and the Cours de Cassation. It was not until 1989 that all three of these courts came to accept Costa v. ENEL as being rightly decided. Article 55 of the 1958 French Constitution says that: Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party.70

But, notwithstanding this clear constitutional grant of power, the French legal system had the hardest time of any EU member in coming to accept the correctness of Costa v. ENEL. Professor Alter mentions a number of reasons that help to explain France’s legal cultural reticence. First, as she notes, the French revolutionaries so hated activist judges that they made it a national crime for judges to interfere with the legislative or the executive branches of the government.71 Second, French legislative acts were conceived of as embodying what Rousseau called the volonté générale or national sovereignty of France.72 Third, Gaullist judges in the 1960s and 1970s were by and large French nationalists, who bridled at the idea of EU law being supreme over French law.73



69

Id. at 124–​81. www.constituteproject.org › constitution › France_​2008. 71 Alter, supra note 2, at 124–​25. 72 Id. at 125. 73 Id. 70

290  the History and growth of Judicial Review, Volume 2 It was only after 1981, when President Mitterrand gradually appointed socialists to the Conseil Constitutionelle that that court became more open to EU law. Fourth, and finally, France has long opposed judicial review of the constitutionality of legislation on the ground that it gives judges the legislative and/​or executive power. These same concerns were triggered by giving precedence to EU supranational law over French law. It was very, very hard to get French lawyers to give up on the absolute sovereignty of the volonté générale of the French people. The pressure for change in France did not come from the lower courts, as it did in Germany.74 Instead, the three Supreme Courts began to disagree among themselves about the correctness of Costa v. ENEl. Professor Alter observes that “90 per cent of referrals to the ECJ come from the judiciary branch.”75 The Supreme Court of the French Judiciary is called the Court of Cassation, and it has jurisdiction to hear appeals only of ordinary civil and criminal cases. The more powerful and important court in France is the Chief Administrative Law Court, which is called the Conseil D’Etat. This court is staffed, like the French government itself, by graduates of the Ecole National d’Administration (ENA). The judges on the Conseil d’Etat thus identify very strongly with the French nation-​state and its sovereignty.76 As Professor Alter explains, private litigants could only challenge French government policy in the Conseil D’Etat, at least prior to 2008. One would therefore have expected the Conseil D’Etat to refer a lot of cases to the ECJ, but it has chosen not to do so. The Conseil D’Etat was bitterly opposed to the doctrine of Costa v. ENEl and to the supremacy of EU law over French law. It was not until 1989 that the Conseil D’Etat finally relented and accepted the ECJ’s 1964 holding in Costa v. ENEl as being correct. The big problem in France was whether French judges had the power to enforce EU law against a subsequently enacted French law. This is the problem I discussed above of lex posterior derogate legi apriori (last law enacted trumps all previous laws). The lex posterior rule is the standard rule of interpretation in all countries with respect to treaties like the Treaty of Rome. Professor Alter identifies five rounds that France went through with respect to the validity of EU law. Round 1, from 1962 to 1969, was characterized by French judges refusing to consider European law as being supreme.77 One must note that throughout this period, Charles de Gaulle, an ardent French nationalist, was president of the republic. It would have been astonishing for a French judge during de Gaulle’s presidency to declare that EC law trumped French law. Professor Alter’s round 2, from 1970 to 1976, saw one of Frances three Supreme Courts—​the Cours de Cassation—​or supreme court for ordinary civil and criminal cases “break ranks and accept a role in enforcing European

74

Id. at 127. Id. at 129. 76 Id. 77 Id. at 137. 75

The European Union and the Council of Europe  291 law supremacy.”78 In Professor Alter’s round 3, from 1977 to 1981, the French “Conseil D’Etat stepp[ed] up its opposition to ECJ jurisprudence.” In round 4, from 1982-​1989, a second of the three French Supreme Courts—​the Conseil Constitutionelle agreed with the Cours de Cassation and agreed to apply European law as supreme over a national law enacted later in time.79 At that point, the Conseil D’Etat, which was outnumbered 2 to 1 among French Supreme Courts relented and in ‘Nicolo’, Raoul George Nicolo & another, Conseil d’Etat decision of 20 Oct. 1989, [1989] Recueil Lebon 190, [1990] 1 CMLR 173, the Consel d’Etat accepted, in general, the idea of European law supremacy, although not endorsing all of the ECJ’s jurisprudence. Finally, Professor Alter argues that in round 5, from 1990 to1998, “the Conseil d’Etat and the Conseil Constitutionelle reposition[ed] themselves [so that they could better] influence the development of European law.”80 By 1992, a study by the Conseil d’Etat found “that more than half of all new French laws originate in Brussels.”81 The great United Kingdom jurist, Lord Denning is quoted aptly by Professor Alter as having said in 1990 that: Our sovereignty has been taken away by the European Court of Justice . . . It has put on the Treaty an interpretation according to their own views of policy—​ which is to make all laws of the European community the same—​or in their words to ‘harmonise’ them . . . Our courts must no longer enforce our national laws. They must enforce Community law.  .  .  . No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses—​to the dismay of all.82

IV.  Why Did Judicial Review Originate and Grow in the EU? The birth and growth of judicial review in the EU did not occur as a result of Professor Ran Hirschl’s hegemonic preservation model of elite powers seeking to engrain a fading ideology through the empowering of a like-​minded judiciary. As the previous discussion of the emergence and expansion of judicial review in the EU make clear, hegemonic preservation theory falls flat in explaining the ECJ’s ever-​expanding judicial review role, which repudiates the analysis that Ran Hirschl offers in Towards Juristocracy: The Origins and Consequences of the New Constitutionalism.83 There simply was no fading elite hegemonic power when the 78 Id. at 145. 79 Id. at 157. 80 Id. at 167. 81 Id. at 172. 82 Id. at 56. 83 Ran Hirschl, Towards Democracy:  The Origins and Consequences of the New Constitutionalism (2007).

292  the History and growth of Judicial Review, Volume 2 ECJ was founded that was seeking to entrench itself against a rising democratic force it could no longer contain. Professor Tom Ginsburg’s theory is that judicial review emerges when two evenly balanced political parties led by rational actors seek “insurance and commitment” by constitutionalizing certain rights. There simply were no evenly balanced political parties when the ECJ was founded, and fundamental rights were not firmly a part of EU law until the last twenty years. Professor Tom Ginsburg’s theory of the origins and growth of judicial review thus fails totally in explaining the EU experience. There is also not really a rights from wrongs theory, building on Alan Dershowitz’s great book Rights from Wrongs:  A Secular Theory of the Origins of Rights,84 which explains the origins and growth of judicial review in the EU between 1963 and 2020. While Dershowitz’s perspective is very helpful in understanding the origins of judicial review in India, South Africa, Israel, and Germany, it does not explain at all the origin and growth of judicial review in the EU. Nor do I really think that borrowing explains the origins and growth of judicial review in the EU. It is true that the ECJ judges who created the Doctrine of Direct Effect in 1963 and the Doctrine of the Supremacy of European Law in 1964 were aware of the existence of judicial review in the United States, Germany, and Italy, but I see no evidence that borrowing was a major part of what was going on in the creation of EU judicial review, except to the loose extent that some of the ECJ judges might have privately hoped they were creating a United States of Europe. The national courts in Germany and France, which between 1963 and 1989 gradually accepted the supremacy of EU law over national law were certainly not trying to borrow the U.S. or German federal models. In contrast, my theory, shared by Professor Martin Shapiro, holds that judicial review will spontaneously emerge in any real federal structure as the need for a federalism umpire gradually becomes apparent both to supranational court judges and to national court judges, if they are given one-​quarter of a century to think the matter over. That is precisely what happened in the EU as the ECJ successfully asserted its power to hear individual rights claims, as it enlisted the member courts of the EU in the project of enforcing EU law over a twenty-​six-​ year period of time, and as it declared successfully that EU law was supreme over the law of the member states also over a twenty-​six-​year period of time. The origins and growth of the power of judicial review in the EU is a classic tale of federalism umpiring giving rise to judicial power over more than a quarter of a century. 84 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005).

The European Union and the Council of Europe  293 The system of judicial review created by the ECJ and the EU national courts working together is, like a language, what Friedrich Hayek has called a spontaneous system of order, which was planned by no-​one, but which emerged spontaneously to fill a need by dozens of different actors. Friedrich Hayek, Volumes I, II, and II, “Law, Legislation, and Liberty (1973-​1979). The ECJ system has binding rules, like the grammar and meaning of words in the English language, but no central planner established those grammatical rules or word meaning. They evolved spontaneously to fulfill a social need. In 2007, the EU adopted a Charter of Fundamental Rights, enforceable by the ECJ and, of course, by the courts of the EU member nations. This charter broadly protects human dignity, liberty, and all the other classical liberal constitutional rights. The charter was adopted to limit the EU institutions by subjecting them to constitutional and due process norms. The adoption of the charter in 2007, like the U.S. adoption of the Fourteenth Amendment in 1868, marks the expansion of EU judicial review from playing purely a federalism umpiring role into also playing a protection of individual human rights role. Many of the rights guaranteed by the charter were a response to some past wrong done by a European government at some point over the last three hundred years, so the charter is in part a rights from wrongs document. The adoption of the charter also reflects the EU’s borrowing of the institution of individual rights protection judicial review. That institution has been so widespread in modern times that no constitutional system can live without it. How should we think about the sixty year long successful campaign by the ECJ to get the EU nation-​state governments to accept its claim that the Treaty of Rome was really a constitution and not an ordinary treaty and that EU law was supreme even over later in time adopted national laws? One observation that occurs to me is how very many ECJ judges, German judges, and French judges wrestled with this problem for twenty-​six years before coming to an answer. Judicial review in the EU is, as I explained above, a Hayekian spontaneous system of order. No one person, not even Judge Robert Lecourt of the ECJ, could have centrally planned this outcome. The final result was and as Brexit shows, remains contestable by other independent actors. If, for example, Germany had not first followed the ECJ’s lead, it is highly doubtful whether France would have done so on its own. Each ruling led to a subsequent ruling whether by the ECJ or by the national courts. The final result is nothing less than a system of spontaneous order that arose to fulfill a unique need. One question that the European experience leaves us with is whether international treaty organizations in Latin America or Asia might be able to replicate what the ECJ was able to persuade Germany and France to go along with. I

294  the History and growth of Judicial Review, Volume 2 suspect the answer is “no.” What happened in the EU is probably reflective of the underlying history of Europe, in my opinion. Remember that only 521 years ago, in 1500 A.D., Europe was united in its decentralized reliance on a uniform system of applying Roman law in court cases, in its use of the Latin language by scholars, and in its allegiance to the Holy Roman Catholic and Apostolic Church. The idea of a uniform supreme law of Europe is not as new as is the EU. Once upon a time, all of Europe spontaneously rose up and accepted Roman law as the uniform law of Europe, as Roman law was described in the corpus juris civiles. It is nation-​states like Italy and Germany that are newcomers on the European scene, and if one looks at Europe in 1500, it had a uniform system of law. I suspect that this shared memory and history made it easier for the ECJ to persuade Germany and France to go along with the ideas that EU law has direct effects and is supreme over nation-​state law.

V.  The Council of Europe, the European Convention on Human Rights and Freedoms, and the European Court of Human Rights There is another trans-​European Court, which is almost as powerful and as consequential as is the ECJ. That court is the European Court of Human Rights (ECtHR), which enforces the European Convention on Human Rights (ECHR), which is a transnational Bill of Rights for European countries established on September 3, 1953, when it entered into force. All Council of Europe parties are expected to ratify the European Convention on Human Rights and to submit to the jurisdiction of the ECtHR when they become members of the Council of Europe. The Council of Europe was founded in 1949 after the Allied victory in World War II, and it has forty-​seven member states today. The Council of Europe’s European Convention on Human Rights applies in 2021 to approximately 820 million people. Nearly all of the European nation-​states are members of the Council of Europe with the exception of Belarus, which is a dictatorship and the Vatican City, which is a theocracy. The European Court of Human Rights (ECtHR) is the most important supra-​national human rights protecting court today anywhere in the entire world. The European Convention on Human Rights is an international treaty whereby the forty-​seven members of the Council of Europe have pledged to follow a sweeping Bill of Rights, and they have agreed that that Bill of Rights will ultimately be enforced by the ECtHR, which sits in Strasbourg, France. The convention has been amended over the years to add various protocols, which have the same force and effect as the original convention rights. The Council of

The European Union and the Council of Europe  295 Europe, which funds the ECtHR, is an international organization whose goal is to promote the protection of human rights in Europe. It has an annual budget of approximately half a billion euros. The Council of Europe is not a confederation government akin to the EU. It is, instead, a more loosely allied international treaty organization of forty-​seven members, all of whom have signed an international human rights treaty, the European Convention on Human Rights. The council has a Committee of the Foreign Ministers of the forty-​seven signatory nations and a parliamentary assembly, which is composed of members of Parliament from the signatory states. But, the Council of Europe is most famous because it funds and maintains the ECtHR, which sits in Strasbourg, France, and which is an almost universally followed European Human Rights Court, which exists as a functioning court whose judgments are followed even though it is not an appendage of a sovereign nation-​state or even of a supranational government like the government of the EU. The document that the ECtHR enforces is called the European Convention on Human Rights. The European Convention on Human Rights protects all the basic rights, which are protected in the classical liberal bills of rights of the G-​20 democracies, which we have been studying. Thus, the convention protects the right to life, the right not to be tortured, the right to human dignity, freedom from unreasonable police practices, the rights of families, freedom of expression, freedom of religion, property rights, social welfare rights, and the right to a democratic form of government. Some rights, like the rights to life and not to be tortured are protected absolutely, while other rights are protected after a balancing analysis is done, which is call proportionality review. As part of that proportionality analysis, the ECtHR affords member countries a “margin of appreciation”—​or federalism discount—​whereby they are allowed to deviate from ideal European norms to some extent because of peculiar situations within the member state countries. In this respect then, the European Convention on Human Rights is less sweeping than is the U.S. Bill of Rights, which protects many fewer rights, but which protects the rights it does cover more absolutely. As with the EU and the European Court of Justice, there is a vast English language literature on the European Convention of Human Rights and on the European Court of Human Rights. I do not claim to have mastered all of that literature. I rely instead in the discussion below on the following sources: (1) Alec Stone Sweet and Claire Ryan, A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights; (2)  Helen Keller and Alec Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems; (3) Alec Stone Sweet, On the Constitutionalization of the Convention: The European Court of Human Rights as a Constitutional Court; (4) Steven Greer, The European Convention of Human Rights: Achievements, Problems, and Prospects;

296  the History and growth of Judicial Review, Volume 2 and (5)  Alastair Mowbray, European Convention on Human Rights:  Cases, Materials, and Commentary.85

A.  History of the ECHR and of the ECtHR The idea of drafting and ratifying the European Convention on Human Rights in 1953 was clearly a reaction to the great wrongs committed by the Nazis and the Fascists prior to and during World War II, including, of course, the great wrong of the Holocaust. The countries of Europe after World War II were not content simply to ban governmental wrongdoing in their own national constitutions. They also wanted to ban it in a trans-​European document like the European Convention on Human Rights. The European Convention on Human Rights is thus in its origins a classic rights from wrongs document. The rights it protects are the very rights the Nazis and the Fascists sought to deny to their people. The ECHR is clearly, as an original matter, a rights from wrongs document of the type Professor Alan Dershowitz identifies in Rights from Wrongs: A Secular Theory of the Origin of Rights.86 Judicial review under the ECHR by the ECtHR clearly originated for rights from wrongs reasons and took off because it offered a valued product in providing trans-​European federalism umpiring of individual rights. The ECHR has expanded over time to take in many additional countries. When fascist regimes collapsed in the 1970s in Spain, Portugal, and Greece, those countries eventually signed the ECHR. When communism collapsed in the 1990s, almost all the nations of Central and Eastern Europe signed the ECHR. All of these expansions in nation-​state coverage of the ECHR came about as a result of a rights from wrongs reaction against fascism and communism.

B.  The ECtHR and Its Jurisdiction in 2021 As Professor Alec Stone Sweet and Clare Ryan explain in A Cosmopolitan Legal Order:  Kant, Constitutional Justice, and the European Convention on Human 85 Alec Stone Sweet & Claire Ryan, A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights (2018); Helen Keller & Alec Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems (2008); Alec Stone Sweet, On the Constitutionalization of the Convention:  The European Court of Human Rights as a Constitutional Court (2018); Steven Greer, The European Convention of Human Rights: Achievements, Problems, and Prospects (2006); Alastair Mowbray, European Convention on Human Rights:  Cases, Materials, and Commentary (3rd ed. 2012). English language translations of the ECtHR cases excerpted here can be found in Steven Gow Calabresi, et al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials (Foundation Press 2016). 86 Dershowitz, supra note 84.

The European Union and the Council of Europe  297 Rights, since 1998 the ECHR has been incorporated into the domestic law of all forty-​seven nations, which are members of the Council of Europe. What that means as a practical matter is that the European Convention is now enforceable domestic law in all of the forty-​seven member states and that the ECHR can, in theory, be enforced by courts of cassation and councils of state in all European nations, as well as by constitutional courts.87 This represents a breathtaking change in the status and powers of judges in civil law nations, in particular.88 Professors Alec Stone Sweet and Clare Ryan add that since the adoption of Protocol n. 11 (1998) to the ECHR, it is now the case that any individual who has exhausted his ECHR complaint in one of the apex national courts can now appeal directly to the ECtHR.89 Protocol n. 11 eliminated the European Commission of Human Rights, which dated back to 1954, and which had, until 1998, filtered individual applications to the ECtHR. Now all individual applicants who have exhausted their domestic law claims can petition the ECtHR directly to hear their cases.90 Some raw numbers help to illustrate the scope of this change. Prior to 1998, the ECtHR received 8,400 complaints whereas in the years between 2014 and 2016 the ECtHR received more than 150,000 applications. Stone Sweet and Ryan wisely note that for the ECHR to be effectively implemented, it will be necessary for the domestic courts of the forty-​seven member nations to themselves enforce the ECHR now that it has been effectively incorporated into nation-​state law. Stone Sweet and Ryan accurately describe the ECtHR as being a trusted European-​wide Constitutional Court, which can guide the nation-​states in conforming to the ECHR, but not hear the overwhelming majority of petitions with which it is presented. Stone Sweet and Ryan explain that the ECtHR treats the ECHR as being a living instrument, the meaning of which evolves over time.91 The ECHR is interpreted purposively and teleologically. Stone Sweet and Ryan note that the only absolute rights in the ECHR are the rights to life, the prohibition on torture, and the ban on slavery.92 All other ECHR rights are subject to proportionality review, which to Americans involves what we would call a balancing test. One problem in recent years is that ten nations—​Ukraine, Turkey, Russia, Hungary, Romania, Italy, Georgia, Poland, Azerbaijan, and Moldova “have produced a whopping 85% of all pending cases.”93 ECtHR proceedings are now



87

Stone & Ryan, supra note 85, at 1, 4, 82, 93, and 118. Id. at 95–​101. 89 Id. at 1, 114–​17. 90 Id. at 120–​21. 91 Id. at 121. 92 Id. at 123. 93 Id. at 129. 88

298  the History and growth of Judicial Review, Volume 2 sometimes conducted by one judge, sometimes by a three-​judge committee, sometimes by a seven-​judge chamber, and sometimes by the seventeen-​judge Grand Chamber.94 The ECtHR tries to apply the principle of subsidiarity through its “margin of appreciation” doctrine whereby all nations are allowed to differ mildly from the European consensus under a kind of federalism discount.95 The ECtHR’s goal is to raise the floor of rights protection all over Europe, while not providing a ceiling, which individual member nation may want to go beyond.96 Stone Sweet and Ryan discuss the applicability of the ECtHR model beyond Europe, and they are very critical of U.S. judicial review, which they claim under protects rights, even though the U.S. Supreme Court is far more protective of freedom of expression that is the ECtHR. They have high hopes that the Inter-​ American Convention on Human Rights and the Economic Community of West African States might someday protect rights as effectively in Latin America and in Africa, as they are protected in Europe. Stone Sweet and Ryan also discuss the EU’s refusal, as of 2018, to ratify the ECHR.97 But, most of all, they emphasize that the ECtHR is the trustee of a multilevel constitutional legal order thanks to the incorporation of the ECHR into the domestic law of all forty-​seven signatories to the ECHR. Stone Sweet and Ryan make a powerful case that the ECHR has become the Constitution of Europe and the ECtHR has become the Constitutional Court of Europe. The one caveat is that nations like the United Kingdom are considering withdrawing from the ECHR, and the United Kingdom could legally do that if it so chose. The judges of the ECtHR are elected to a nonrenewable term of nine years. A single judge can reject an application as inadmissible, but difficult applications can be referred to a three-​judge committee to determine if they should be heard. There are forty-​seven judges on the ECtHR—​one for each member nation of the Council of Europe. Judges are elected by the Parliamentary Council of the Council of Europe from among three names suggested by the member nations of the Council whose slot on the court is vacant. Advisory opinions can be rendered at the request of the Committee of Ministers. Cases are heard by a Chamber of the Court, and they can be reheard by a Grand Chamber of the Court, which can consist of up to seventeen judges. Chambers decide cases by majority vote with a signed opinion, and signed concurring and dissenting opinions are allowed and are frequent. Criticism from Russia of the court is frequent since Russia is often found to be doing things in violation of the convention. The court has also invalidated a number of laws



94

Id. at 131. Id. at 132–​38. 96 Id. at 174–​84. 97 Id. at 91. 95

The European Union and the Council of Europe  299 from the United Kingdom, which embarrassed that country and contributed to it passing the Human Rights Act of 1998. The United Kingdom has openly and publicly refused to comply with ECtHR caselaw that gives some prisoners the right to vote in national elections. The case law of the ECtHR from 1959 down to the present day is voluminous and covers all aspects of human rights law. I will not try to summarize that case law here except to say that it is almost but not quite as comprehensive in protecting rights as is the case law of the German Constitutional Court, which I have discussed earlier. The main problem with the ECtHR, if it is a problem, is that since it has jurisdiction over forty-​seven countries with 820 million people, it can hear cases from countries with wildly clashing legal traditions. A recent example is the use of crucifixes in public schools in Italy, which are unconstitutional in Germany and which an initial panel of the ECJ held to be in violation of the rights secured by the European Convention. Italy had a fit after this ruling, and it appealed the court’s ruling to a Grand Chamber. The Grand Chamber in turn applied a “federalism discount” called the “Margin of Appreciation” whereby it held that crucifixes in public school classrooms were generally problematic but were OK in Italy because of its unique Catholic heritage and culture. Lautsi v. Italy, Application No. 30814/​06, [2011] Eq LR 633; (2012) 54 EHRR 3, (2011)ELR 176, 30 BHRC 429. A similar “Margin of Appreciation” was ironically used to allow the formerly secularist government of Turkey to ban the wearing of an Islamic headscarf in a Turkish university. Leyla Sahin v. Turkey (Application No. 44774/​98) (2004). This holding is ironic because Turkey has since become an avidly Islamist country with a dictatorial Islamist government. The “Margin of Appreciation” doctrine has been used by the ECtHR in recent years to avoid deciding whether there is a right to same-​sex marriage, Case of Hamalainen v. Finland (Application No. 37359/​09), July 16, 2014, compare Obergefell v.  Hodges, 576 U.S. _​_​_​_​(2015); and to uphold France’s laws banning the wearing of Islamic headscarves and burkas. Nonetheless, in many other cases, the ECtHR has bravely and successfully protected human rights that were being violated by member nations. The court, as long ago as 1981, held that laws forbidding same-​sex sexual relationships were unconstitutional. Case of Dudgeon v. the United Kingdom, Application No. 7525/​76, October 22, 1981. This decision predated the U.S. Supreme Court’s ruling protecting constitutionally same-​sex sexual relationships in Lawrence v. Texas, 539 U.S. 558 (2003) by twenty-​two  years. The ECtHR has fashioned a sophisticated and growing body of case law that has developed the meaning of the convention far beyond the originally envisioned minimal standard of setting a floor, which countries were not to drop beneath, as opposed to a ceiling of rights protection to which they should aspire. In a 1995 decision, the court called the European Convention on Human Rights

300  the History and growth of Judicial Review, Volume 2 “a constitutional document” of European public law. And, in 2000, the president of the court, Luzius Wildhaber, writing in a personal capacity but echoing prevailing sentiments on the court, argued strongly in favor of enhancing its constitutional role and authority.98 The ECtHR’s greatest achievement is that it has founded a widely respected body of European Human Rights law, even though the Council of Europe is in no way a nation-​state that can enforce such laws! This is a truly remarkable achievement. However, in many ways, the ECtHR still has the features of a regular court. It has no control over its docket, it does not usually issue advisory opinions although in theory it can, and it must take all the cases that come before it. This makes it perhaps one of the most overworked courts in the world, with a very long backlog of cases. A true Constitutional Court would choose to hear only those cases that address novel questions, clarify ambiguous law, and are particularly important for the respondent state or for Europe as a whole.99 Its decisions now affect domestic legal systems to the extent that all forty-​seven members of the Council of Europe have, in one way or another, incorporated the ECHR into their domestic law where it can be enforced even by ordinary courts of cassation and councils of state. The ECtHR’s power remains limited to awarding just compensation. To avoid embarrassment and to prevent future lawsuits, most member states alter their laws to comply with the court’s rulings. It bears repeating that the Council of Europe has forty-​seven nation-​states and 820 million citizens, making it the largest juridical body in the world, second only to the Supreme Court of India. Still, no member state has referred to the ECtHR as a Constitutional Court, and they have at times called the European Convention on Human Rights a “ ‘Convention.’ ”100 As a supranational body, the court suffers from a perennial legitimacy deficit. Why should it have the power or at least influence to tell the forty-​seven member states, including Russia, to change their laws? What about when a convention right conflicts with rights in a domestic constitution? The ECtHR maintains its legitimacy in practice in several ways. First, as already mentioned, the court gives all forty-​seven members a substantial “margin of appreciation” or “federalism discount.” The court will not closely scrutinize many laws because it understands the need for it to play umpire among countries that vary substantially based on their histories, cultures, religions, and domestic legal systems. Many scholars question whether this “margin of appreciation” approach is, or even can be, applied in a consistent or principled way. 98 Introduction, in A Europe of Rights 15 (Alec Stone Sweet & Helen Keller eds. 2008). 99 Steven Greer, The European Convention on Human Rights:  Achievements, Problems, and Prospects (2012). 100 Alec Stone Sweet, On the Constitutionalism of a Convention: The European Court of Human Rights as a Constitutional Court 2 (Faculty Scholarship Series, Paper 71, 2009).

The European Union and the Council of Europe  301 Second, the ECtHR also seeks to maintain its legitimacy and power by allowing at least one judge from a member state whose law is being reviewed to sit on the ECtHR panel, which is reviewing that nation’s law. Third, and lastly, the ECHR’s legitimacy and power stems from the fact that participation in the Council of Europe is voluntary. Any state can choose to withdraw if it wants to do so. So far, the fear of international embarrassment or humiliation has prevented any member nation-​states from withdrawing from the Council of Europe. The court sometimes decides whether an interpretation of a right is correct if it fits with the practices of a substantial majority of member states. Thus, the ECtHR does not so much alter European practices, but rather it targets outliers—​ like especially the United Kingdom, which is a common law jurisdiction, to bring them up to the standards of a substantial majority of the member states. This targeting of the United Kingdom has been bitterly resented in that common law country, and it was a factor in the Brexit vote and in a movement in the United Kingdom to rescind the U.K.’s membership in the European Convention of Human Rights regime. This suggest the very real limits on the ECtHR’s power. Every member state has, as mentioned above, incorporated the European Convention on Human Rights into its domestic legal system. Citizens may plead violations of the convention to their domestic courts, creating a highly effective system of decentralized enforcement of the ECHR, while elevating the status of ordinary courts of cassation and councils of state. Dualist countries, countries where executive agreement is not sufficient for domestic enforcement of treaty law, have incorporated the convention either through statute or interpretation. They have either suspended or ignored their traditional lex posterior rule that when a subsequent law conflicts with a prior treaty, the treaty is repealed. In most member states, incorporation of the European Convention on Human Rights into domestic law has resulted in “constitutional pluralism” where two or more sources of judicially enforceable rights coexist. The exact relationship or hierarchy between domestic constitutions and the convention is often unclear. What is clear is that incorporation has weakened domestic constitutional courts that used to be the sole arbiters of rights. This is especially a problem in German constitutional law, which as we have seen in a prior chapter has unamendable features. Domestic national courts now interact with the Strasbourg Court, which may enforce rights against domestic legislatures and overrule domestic courts’ interpretation of the European Convention on Human Rights. A dialogue about rights goes on between the judges in Strasbourg and those in the capitals of the nation-​states. Furthermore, incorporation of the ECtHR’s jurisprudence has changed the balance of power among domestic courts. In accordance with Kelsenian theory, before incorporation of the ECHR, in Europe only Constitutional Courts enforced rights against the legislature. However, the incorporation of ECtHR jurisprudence into national law has empowered the ordinary courts of cassation and councils of

302  the History and growth of Judicial Review, Volume 2 state to enforce and interpret the rights created by the European Convention on Human Rights against the legislature, while skipping the constitutional courts. Domestic and constitutional courts have clashed over who has superior authority over rights interpretation.101

C. Case Law I will now briefly summarize a few European Convention of Human Rights cases, which illustrate the range of subjects on which the convention has had an effect. English language translations of the ECtHR cases excerpted here can be found in Steven Gow Calabresi, et al., The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials (Foundation Press 2016).

1. Judicial Independence Article 6(1) of the [European] Convention on Human Rights states that: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ***

In Starrs v. Ruxton (2000) J.C. 209 (H.J.C.) (Scot.) (1999), a Scottish court considered whether the practice in Scotland of appointing temporary sheriffs for a period of only one year was consistent with Article 6(1) of the convention. The court decided that appointing a judge for such a short and limited term deprived the applicant of “an independent and impartial tribunal,” thus violating the European Convention on Human Rights. The Scottish court held that term limits for judges were permissible but that so short a term limit as a term of one year violated the convention, a conclusion that I think is indisputably right.

2. Freedom of Expression That Incites Lawless Action In Case of Zana v. Turkey (69/​196/​688/​880), a Turkish citizen of Kurdish background, who prior to his imprisonment had been the mayor of a Kurdish city, told journalists in a prison interview that: I support the PKK national liberation movement; on the other hand, I am not in favor of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake ***. 101 Id. at 11–​13. See also Neil Walker, The Shifting Foundations of the European Constitution, in Social and Political Foundations of Constitutions (Denis J. Galligan & Mila Versteeg eds., 2013).

The European Union and the Council of Europe  303 The PKK, at that time was, in the eyes of the Turkish government, a terrorist movement that was seeking illegally to create an independent Kurdish state. Turkey prosecuted Zana for incitement to violence, as a result of the comment quoted above. Zana defended himself by claiming his speech was protected under Article 10 of the European Convention of Human Rights, which in its first paragraph protects “the right to freedom of expression.” Turkey responded by quoting the second paragraph of Article 10, which qualifies the right to freedom of expression as follows: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity, or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

As one can see from reading Section 2 of Article 10, the European Convention on Human Rights and Freedoms broadly protects human rights but always subject to a balancing test where other social factors are allowed to come into play to limit rights expression. The reader will not be surprised to learn that in light of the balancing language in Article 10, Section 2, Turkey was allowed to prosecute Zana for incitement to lawless action for the language he used in his prison interview. The court noted that Turkey was plagued by a violent Kurdish separatist movement, and it allowed it a ‘margin of appreciation’ in how to deal with that movement. The case is striking because it might well have come out in favor of Zana under the U.S. Supreme Court’s decision in Brandenburg v. Ohio, 395 U.S. 444 (1969). Under that case, even speech advocating violence is constitutionally protected under the First Amendment to the U.S. Constitution unless there is imminent incitement to lawless action.

3. Freedom of Expression and Hate Speech In Garaudy v. France, Application No. 65831/​01, the ECtHR heard a freedom of expression claim brought by a Holocaust denier and defender of Nazism, Mr. Roger Garaudy, a French National. Garaudy was convicted in France for hate crimes, and he challenged his French court convictions on the ground that they violated the freedom of expression guarantee in Article 10 (1) of the European Convention on Human Rights. The court concluded that Garaudy went way beyond criticizing Zionism and the State of Israel, and the court held he had denied the occurrence of the Holocaust, even though its occurrence is an established

304  the History and growth of Judicial Review, Volume 2 historical fact, and that he also sought to rehabilitate the reputation of the Nazi Party. The ECtHR thus concluded that Garaudy’s freedom of expression was permissibly curtailed by the French criminal authorities. It should be noted by way of contrast with this holding that in Virginia v. Black, 538 U.S. 343 (2003), the U.S. Supreme Court constitutionally protected hate speech in the form of a Ku Klux Klan rally of twenty-​five to thirty people who engaged in hate speech about African Americans and burned a twenty-​five to thirty-​foot cross to express their despicable views. The Supreme Court made it crystal clear in this case that the First Amendment to the U.S. Constitution does protect hate speech. The Court in Virginia v. Black quite correctly upheld the criminal prosecution of three individuals who burned a cross on their African American neighbor’s next-​door lawn twenty feet from their house, saying this behavior amounted to the use of fighting words and was a threat of imminent lawless action. American hate speech law and European hate speech law are thus quite different. This is largely the result of the Holocaust and of the European experience with the Nazis, from which the United States was thankfully spared.

4. Freedom of Religion and Proselytizing In Kokkinakis v.  Greece (Application No. 14307/​ 88 (1993)), Mr. Minos Kokkinakis, a retired Greek businessman, became a Jehovah’s Witness in 1936 and was arrested more than sixty times for committing the crime of proselytism in Greece, which has established the Greek Orthodox Church as the official and established church of the nation. It has long been a crime to proselytize in Greece. On March 2, 1986, Mr. Kokkinakis and his wife called at the home of Mrs. Kyriakaki and tried to convert her to become a Jehovah’s Witness. Her husband, who was the cantor at the local Orthodox church, called the police who arrested and imprisoned Mr. and Mrs. Kokkinakis. The couple was prosecuted for the crime of proselytism, and they were sentenced to four months’ imprisonment, convertible into a large fine. Mr. and Mrs. Kokkinakis sought relief from the ECtHR alleging that their freedom of religion under the European Convention on Human Rights had been infringed. The ECHR says in: Article 9 1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic

The European Union and the Council of Europe  305 society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others.

The ECtHR had no difficulty in holding the Greek law banning proselytizing to be a violation of Article 9 because it prevented Mr. and Mrs. Kokkinakis from publicly manifesting their religious faith and from persuading others to become Jehovah’s Witnesses. This is a striking and libertarian reading of Article 9. In Eweida and Others v. United Kingdom (2013) ECHR 37, the ECtHR heard four consolidated cases, each of which involved an individual who sought to manifest their religion in the workplace. The first case involved Ms. Eweida, a British airline stewardess, who was not allowed to wear a cross around her neck at work. The court held that this was a violation of Ms. Ewieda’s right to manifest her religion in a context where doing so caused no harm to others. Accordingly, the court ruled in the first case for Ms. Eweida. The second case involved a nurse on a geriatric ward, Ms. Chaplin, who also sought to wear a cross at work. The hospital at which Ms. Chaplin work objected for public health reasons relating to the spreading of infections. The ECtHR ruled for the hospital in this case on the ground that it was better able than was the court to know what medical safety required. Ms. Ladele and Mr. McFarlane were respectively a civil servant registrar who refused to register same-​sex civil unions for religious reasons and an employee of a private company, which offered counseling services to married couples. They were both fired for not doing their job because they refused to perform services for same-​sex couples for religious reasons. The court ruled that Ms. Ladele and Mr. McFarlane were in a line of work that made it necessary for them to provide services for same-​ sex couples, and the court held that they should find some other line of work if they objected for religious reasons to performing a core aspect of their jobs.

5. Freedom from Torture or Inhuman or Degrading Treatment In Case of Gafgen v. Germany (ECHR Grand Chamber) (Application No. 22978/​ 05) June 2010, the ECtHR heard a case of a criminal confession extracted from the defendant with no equivalent to U.S. Miranda warnings, which case led the police to discover the body of an eleven-​year-​old boy murdered by Gafgen who sought a ransom from the boy’s wealthy parents. The question in the case was whether the police had tortured Gafgen or had subjected him to inhuman or degrading treatment. Gafgen killed the boy on the night of September 27, 2002, and he deposited a ransom note at the parents’ residence saying he would return the boy alive if he received a one million euro ransom in banknotes. At 1 a.m. on September 30, 2002, Gafgen picked up the ransom money at a tram station and was followed home by the police who arrested him. Gafgen implied the boy was being held

306  the History and growth of Judicial Review, Volume 2 by another kidnapper in a hut by a lake. The police, who were worried the boy would die of hypothermia, did not know that the boy was already dead. They: threatened [Gafgen] with considerable personal pain *** if he did not reveal where the boy was. *** Detective officer E thereupon threatened the applicant with subjection to considerable pain at the hands of a person specially trained for such purposes *** and [he] further threatened to lock him in a cell with two huge black men who would sexually abuse him. The officer also hit [Gafgen] several times on the chest with his hand and shook him so that on one occasion, [Gafgen’s] head hit the wall.

Gafgen then relented, confessed to the crime, and led the police to the wooded spot by a lake where the police found the murdered eleven-​year-​old boy’s dead body. Gafgen alleged on appeal that he had been tortured in violation of Article 3 of the convention and that he had been denied a fair trial in violation of Article 6 of the convention. The ECtHR disagreed. The court acknowledged that the police officers’ behavior was at the outer limits of what is permissible under the European Convention on Human Rights, but the court noted that Gafgen had mainly been threatened with torture and that he was not actually tortured. The court observed that the police were right to fear that the kidnapped eleven-​year-​old boy might be alive in the woods suffering from hypothermia, and the court held that all things considered, there had been no Article 3 violation and that justice had been done in the case. Obviously, an interrogation like the one just described would, in the United States, lead to suppression of evidence on exclusionary rules grounds under Miranda v. Arizona, 384 U.S. 436 (1966).

6. The Right to Silence and Not to Incriminate Oneself In Murray v. United Kingdom, 22 EHRR 29 (1996), the ECtHR heard a challenge under Article 6 of the convention to a British judge’s decision to draw adverse inferences in a bench trial from the fact the criminal defendant refused to testify. The European Convention on Human Rights provides in relevant part that: Article 6 1.  In the determination of *** any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ***. 2.  Everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law. ***

The ECtHR read Article 6 as giving Murray a right to remain silent when he was interrogated and not to be made to testify at his own trial. Murray, however,

The European Union and the Council of Europe  307 claimed the additional right to be free of the judge in his bench trial from drawing adverse inferences against him, as a result of his decision to remain silent. The U.S. Supreme Court has held in Griffin v. California, 380 U.S. 609 (1965), that American judges cannot draw such inference under the U.S. Bill of Rights without violating a criminal defendant’s privilege against self-​incrimination. The ECtHR ruled against Murray and for the United Kingdom. There is no privilege against self-​incrimination in the European Convention on Human Rights. The court thought it was entirely fair to draw adverse inferences from Murray’s choice to remain silent, a position I agree with.

7. Property Rights and Regulatory Takings In Hutton-​Czapska v. Poland, Grand Chamber ECtHR (Application No. 35014/​97) (2006), the ECtHR heard a very important regulatory taking, property rights case. The European Convention on Human Rights protects private property rights in: Article 1 of Protocol No. 1

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions prescribed by law and by the general principles of international law. The proceeding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. *** Hutten-​Czapska was the owner of land in Gydnia, Poland, that previously had belonged to her parents. The government of Poland, without Hutten-​Czapska’s permission, leased the land as part of a general rent control scheme for an amount of money that only covered 60 percent of the cost of the maintenance of the residential buildings. Hutten-​Czapska could not herself live on the land or evict the tenants, and she was compelled to pay out of her own pocket 40 percent of the cost of maintaining the buildings. Hutten-​Czapska sued, alleging a violation of Article 1 of Protocol No. 1. The ECtHR ruled for Hutton-​Czapska saying the Polish government had committed an uncompensated regulatory taking. The court added that it was unfair to burden one individual so heavily for curing the general social problem of a lack of affordable housing for the poor in Poland. The ECtHR case is more protective of private property rights than was the U.S. Supreme Court in Pennell v. City of San Jose, 485 U.S. 1 (1988). In that case, a 6 to 2 majority of the U.S. Supreme Court upheld a City of San Jose rent control

308  the History and growth of Judicial Review, Volume 2 plan that required consideration of the economic hardship to the tenet of a rent-​ controlled property before the rent could be raised. Justice Scalia dissented vigorously joined by Justice O’Connor. The case law of the ECtHR is thus today more protective against regulatory takings by rent control laws than is the case law of the U.S. Supreme Court.

8. Right to Respect for Private and Family Life In Von Hannover v. Germany, Application No. 59320/​00, ECtHR (Third Section) (2004), the European Court of Human Rights decided a very important case concerning the European Convention on Human Rights’ protection of private and family life. The relevant text of the Convention reads: Article 8 1.  Everyone has the right to respect for his private and family life, his home and his correspondence. 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-​being of the country, for security, public safety or the economic well-​being of the country, for the prevention of disorder and crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In this case, Princess Caroline of Monaco, whose last name is Von Hannover, brought suit against the country and Constitutional Court of the Federal Republic of Germany arguing that German tort law and constitutional law did not adequately protect her “private and family life” because every time she stepped out of doors to do anything, she was besieged by and photographed by paparazzi photographers. She was unable to walk on the street, go to a restaurant or park, sunbathe on the beach, or go out with any other person without the news of her life being published in the newspapers and news magazines. The princess noted that she was not a government official and that her public life consisted solely of involvement in various charitable and humanitarian foundations. She argued this very limited public role rendered the behavior of the media to be a violation of her Article 8 European Convention on Human Rights right to respect for her private and family life. The ECtHR sided with Princess Caroline, and it ordered the Federal Republic of Germany to toughen up its tort and criminal law to protect Princess Caroline from her ongoing harassment by the news media. This is a striking case because usually the convention acts as a shield for an individual against a hostile state act—​that is, as a Charter of Negative Liberties—​whereas here Princess Caroline is invoking the protection of the charter to compel the German government

The European Union and the Council of Europe  309 to go further in enforcing its tort and criminal law than it had hitherto done. The ECtHR’s decision in this case can be contrasted with the failure of the U.S. Supreme Court to order the government to do a better job of enforcing the law in such famous cases as DeShaney v. Winnebago County, 489 U.S. 189 (1989); and in United States v. Morrison, 529 U.S. 598 (2000).

9. The Right of Incarcerated Prisoners to Vote in Elections In the case of Scoppola v. Italy, Grand Chamber (No. 3), 126/​05 (2012) ECHR 868 (May 22, 2012), the European Court of Human Rights heard a case by a convicted first-​degree murderer, Scoppola, that Italy had violated Article 3 of Protocol No. 1 of the European Convention on Human Rights by denying him the right to vote in any Italian or EU elections. The relevant convention texts provides as follows: Article 3 of Protocol No. 1

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. *** Scoppola claimed that because prisoners serving a life sentence like him could not vote under Italian law, the legislature that was elected did not reflect the opinion of all of the people, as Article 3, Protocol No. 1 requires. The ECtHR began its analysis by noting that nineteen of the contracting nation-​states placed no restrictions on the right of convicted prisoners to vote; seven nation-​states deprived all convicted prisoners automatically of the right to vote; and the remaining sixteen nation-​states adopted an intermediate approach, which depends on the severity of the sentence a prisoner receives. In a prior decision, see Hirst (no. 2), the ECtHR had held that blanket legal disenfranchisements of prisoner voting rights were impermissible and that disenfranchisement had to be ordered by the sentencing judge who should explain in specific reasoning why disenfranchisement was necessary. The court noted that in these cases, it was appropriate to accord the nation-​state a “margin of appreciation” in light of the different historical development, cultural diversity, and political thought within Europe, which allows each member state to mold its own vision of democracy. Applying these principles to Scoppola’s case, the ECtHR observed the following in Italy: (1) those who were convicted of crimes for which the punishment was limited to a prison term of three years or less lost no voting rights; (2) those who were convicted to prison terms of three to five years or more lost their voting rights for five years; while (3) those like Scoppola who were sentenced initially to life in prison, which sentence was subsequently reduced to thirty years in prison, were deprived of all voting rights permanently. Even then, if Scoppola were released after serving his thirty-​year sentence, he could apply

310  the History and growth of Judicial Review, Volume 2 to recover his right to vote if he proved he was rehabilitated. Taking all of these circumstances into account, the ECtHR concluded that Italy had not violated Article 3 of Protocol 1 in depriving Scoppola of his right to vote. Two points are important to mention here about the ECtHR’s position on prisoner voting. First, the United Kingdom has refused to follow the ECtHR case law at all on this subject, and in the United Kingdom all prisoners are automatically deprived of the right to vote. This issue is a major cause of complaint in the United Kingdom about the alleged insanity of the ECtHR, and it is cited as a reason why the United Kingdom should write its own British Bill of Rights and withdraw from the ECtHR’s jurisdiction. Second, in the United States, not only are all prisoners disenfranchised, but in many states, individuals who have served their jail time but who were once convicted of a felony are automatically disenfranchised for life. This is a major source of controversy in the United States today.

10. Freedom of Assembly and Association In the case of Refah Partisi (The Welfare Party) v. Turkey, 37 EHHR 1 (2003), the ECtHR was asked to overturn a ban by the then-​secular government of Turkey on an allegedly extremist Islamist Party, Refah Partisi (The Welfare Party). Refah Partisi challenged the Turkish government’s ban on its activities and formation under Article 11 of the European Convention on Human Rights. That text reads as follows: Article 11 1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Refah Partisi claimed that its Article 11 rights to freedom of assembly were being infringed by the Turkish government while the Turkish government claimed that the party was a threat to the secular, modern democratic Turkish state. The ECtHR ruled for Turkey and held that the disbanding of Refah Partisi was necessary to preserve a democratic society in Turkey. Accordingly, the Court upheld Turkey’s ban on this Islamist Party.

The European Union and the Council of Europe  311 It bears noting that the fears of the secularist government of Turkey were born out in 2003 when a dictatorial, Islamist Party committed to abolishing Turkish secularism came to power in a national election. Turkey is no longer a secular, constitutional democracy as a result.

11. The Convention and the Rights of Citizens in the Civil Service The ECtHR has issued two important decisions concerning the rights of citizens in the civil service in the Council of Europe member countries. The first such case was Glasenapp v. Germany, 9 EHRR 25 (1986). In that case, Glasenapp had applied for an appointment as a secondary schoolteacher and had signed a declaration saying that she accepted “the principles of the free democratic constitutional system within the meaning of the Basic Law ***.” The länder of North Rhine-​Westphalia had a law, which provided that anyone who is a member of the Communist Party is automatically to be deemed as being not willing in all circumstances to accept “the principles of the free democratic constitutional system within the meaning of the Basic Law.” Eventually, the Land government dismissed Glasenapp, saying she had engaged in willful deceit. Glasenapp sued in the ECtHR alleging her freedom of expression rights under Article 10 of the convention had been violated and also alleging discrimination under Article 14 of the convention, which provides that: Article 14 The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The ECtHR ruled for Germany, noting that there is no right in the European Convention on Human Rights to serve in the civil service. Admittedly, Germany did take into account her expressed views, but only to satisfy itself as to whether Glasenapp possessed one of the necessary personal qualifications for the post in question. Since Glasenapp did not possess that necessary job qualification, the Land government did not violate either Article 10 or 14 in firing her. In Rekvenyi v. Hungary, 30 EHRR 519 (1999), the ECtHR considered a case in which the applicant Rekvenyi was a police officer and, at the same time, the secretary general of the Police Independent Trade Union. On December 24, 1993, Hungary adopted a new law, which forbade members of the armed forces, the police, and security services from being members of any political party and from engaging in any political activity. On March 9, 1994, the Police Independent Trade Union challenged the constitutionality of the 1993 law arguing that

312  the History and growth of Judicial Review, Volume 2 it interfered with the freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The court disagreed, noting that from 1949 to 1989, Hungary had been ruled by one political party and that membership in that party was a prerequisite to serving in the police. Against this backdrop, the court held that Hungary after 1989 had an unusual need to have a police force, which was widely perceived as being politically neutral. “Regard being had to the margin of appreciation left to the national authorities in this area, the court [found] that, especially against this historical background, the relevant measures taken in Hungary in order to protect the police force from the direct influence of party politics can be seen as answering a ‘pressing social need’ in a democratic society ***.”

12. Conclusions on the ECtHR’s Case Law I conclude this brief summary of the ECtHR’s case law by noting that I  have offered only the briefest of summaries of what is by now an extremely large body of case law, the full description of which would entail writing a treatise. I have discussed the cases above just to give my readers some sense of the comprehensive and complex system of judicial review, which is now in place throughout almost all of Europe and that applies to 820 million people! All in all, the ECtHR has been a splendid success both in protecting individual rights and human dignity and in forging a new constitutional rights common law, which applies to all forty-​seven nations that are members of the Council of Europe. This is an absolutely huge accomplishment, and it is fair to say that the ECtHR has succeeded beyond the wildest dreams of its Framers. The development of the ECtHR’s case law, which is followed by almost all of the forty-​seven nations who are members of the Council of Europe, is an astonishing example of a legal system existing unattached to either a sovereign nation-​state or even a non-​sovereign confederation like the EU. This is truly an extraordinary development, which deserves consideration in my two volume series on the origins and growth of systems of judicial review.

VII.  Explaining the Origins and Growth in Power of the Council of Europe and of the European Court of Human Rights The creation of the Council of Europe was first proposed by Sir Winston Churchill, and the council was created by the Treaty of London on May 5, 1949, which was signed by ten nations:  Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom. They were soon joined by Turkey and Greece. Membership in the council was made

The European Union and the Council of Europe  313 open to all European nations. In 1950, the Council of Europe proposed, and the twelve nation-​states, ratified the European Convention on Human Rights, which was modeled on the Universal Declaration of Human Rights of 1948. Also in 1950, Iceland and West Germany joined the Council of Europe ratifying the European Convention on Human Rights. There followed a huge cascade of other countries joining the Council of Europe and signing the European Convention on Human Rights. For example, Austria joined the Council of Europe in 1956; Cyprus in 1961; Switzerland in 1963; Malta in 1965; Portugal in 1976; Spain in 1977; Liechtenstein in 1978; San Marino in 1988; Finland in 1989; Hungary in 1990; Poland in 1991; Bulgaria in 1992; Estonia in 1993; Lithuania in 1993; Slovenia in 1993; the Czech Republic in 1993; Slovakia in 1993; Romania in 1993; Andorra in 1994; Latvia in 1995; Albania in 1995; Moldova in 1995; Macedonia in 1995; Ukraine in 1995; Russia in 1996; Croatia in 1996; Georgia in 1999; Armenia in 2001; Azerbaijan in 2001; Bosnia and Herzegovina in 2002; Serbia in 2003; Monaco in 2004; and, finally, Montenegro in 2007. As one can see from reading the list above and the entry dates of the forty-​ seven member nations of the Council of Europe, membership in the council has followed a wave of democratization and liberalization from the original ten core members to the thirty-​seven additional members who have joined subsequently. The ECtHR itself was established on January 21, 1959, and on November 1, 1998, it became a full-​time institution as all Europeans, who had exhausted their national domestic remedies, gained standing to petition the ECtHR directly to hear their cases. The accession of new member states after the fall of the Berlin Wall led to a huge increase in the number of applications filed with the court. What explains the origins and the extraordinary growth in power of the ECtHR from 1959 down to the present day? First, the decision to create the court, like the decision to ratify the European Convention on Human Rights was a rights from wrongs response to the evils of Nazism and the Holocaust, as well as to the evils of fascism and Stalinist communism. There can be no reasonable doubt as to why the ECtHR was created or why the European Convention on Human Rights was widely adopted after World War II and, in Eastern Europe, after the Cold War. These are plainly rights from wrongs phenomena of the kind Professor Alan Dershowitz describes in his book, Rights from Wrongs: A Secular Theory of the Origin of Rights (2005).102 I am not, however, done yet because the ECtHR has clearly grown in power substantially over time since its founding in 1959. What accounts for this growth in the ECtHR power? I think the ECtHR has been accepted by the people of the



102

Dershowitz, supra note 84.

314  the History and growth of Judicial Review, Volume 2 forty-​seven member nations of the Council of Europe as a kind of federalism umpire, which guarantees individual rights at the continental scale, even when they might be being violated at the national level. In particular, the formerly communist nations of Central and Eastern Europe have signed the European Convention on Human Rights since the fall of the Berlin Wall both to gain an international human rights umpire and for rights from wrongs reasons growing out of the moral catastrophe of communist totalitarianism. I  thus think the ECtHR’s role in present-​day Europe is due to both the rights from wrongs phenomenon and the federalism umpiring phenomenon. As with judicial review by the European Court of Justice, the growth in the power over the last sixty years of the ECtHR can only be explained as being a Hayekian system of spontaneous order, which was, like a language, never planned, but which is quite discernibly a system of order in the world today. The growth of this system of order in Europe may reflect the fact that in part almost all of Europe used Roman law in 1500 A.D., so the idea of pan-​European constitutional law is not necessarily as far-​fetched as one might initially think. What the growth of ECtHR case law shows is the withering away of the nation-​state and of ideas of parliamentary sovereignty. I think this is a very welcome development in every way. Judicial review by the ECtHR thus originated and has grown for all of the reasons that are discussed in this two-​volume book series: (1) The ECtHR is a pan-​European federalism umpire. (2) It originated and has grown in power for rights from wrongs reasons rejecting both fascism and communism in favor of neo-​liberalism. (3) It reflects an attempt by withdrawing U.S., U.K., and French military forces after World War II to hegemonically entrench liberal constitutional rights. (4) It allows European elites the luxury of insurance and commitment. And (5) it borrows from the United States and Germany the very successful idea of judicial review in their own national constitutions. Indeed, the ECtHR became bolder and more daring after 1980 when judicial review had finally proved itself in Germany and in Italy, and it reached new heights of importance in the years between 1989 and the present when the formerly communist nations of Central and Eastern Europe all joined the European Convention on Human Rights and submitted themselves to the discipline of the ECtHR. The growth in the power of judicial review of the ECtHR has many causes, but almost all would agree that it has been, overall, a very happy and propitious development!

Conclusion The German Model and Gouvernement des Juges I have now completed my discussion and analysis of the origins and growth of judicial review of the constitutionality of legislation in the civil law nations. I should acknowledge at the outset that I faced a difficulty in writing Volume II on the civil law nations that I did not encounter in writing Volume I on the common law nations. In every common law country, the case law, and substantial commentary on the case law, is available in English. This is not the case with respect to most of the civil law countries, which I have just discussed. For the civil law nations in Volume II, I have had to rely on secondary sources rather than primary sources. This is the case even as to those civil law nations, like Germany, where virtually all of the Constitutional Court’s case law and much scholarly commentary has been translated into English. These translations, after all, are themselves, secondary sources, and I am not able to vouch for their correctness. As a result, in each chapter in Volume II, I have identified the principal scholar or scholars on whose work I have relied. I tried to find as many sources as possible on each civil law country, but in some cases, there just were not that many English language sources available. All I can say is that I did the best I possibly could under the circumstances. I feel quite confident that my overall assessments as to why judicial review originated and grew in each civil law country or mixed jurisdiction are accurate. This volume on the origins and growth of judicial review in the G-​20 civil law nations is a critical supplement to the discussion in Volume I on the origins and growth of judicial review of the constitutionality of legislation in the G-​20 common law nations for at least three reasons. First, many more people live in civil law nations than live in common law nations. Second, some of the most important authoritarian regimes in the world that have yet to be democratized or liberalized are civil law nations. China and Russia, for example, are both on this list. And, third, it was not until after 1945, and World War II, that any G-​20 civil law country had a full-​fledged system of judicial review of the constitutionality of (federal) legislation. It is thus remarkable that in seventy-​five years, an institution, which had developed over 250 years in the common law world has been so successfully transplanted. The History and Growth of Judicial Review, Volume 2. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075736.003.0013

316  the History and growth of Judicial Review, Volume 2 One question I should address is what system of judicial review is most likely to be suitable to a newly emerging constitutional democracy? I would suggest that the German Model is ideal for newly emerging democracies. It protects rights fully and is least likely to degenerate into dictatorship. It is also essential in civil law countries to have a constitutional court and any future emerging democracies will almost certainly be from the civil law tradition. I showed in Volume I that the U.S. Model of a written Bill of Rights, checks and balances, and judicial review has triumphed over the last century over the British Westminster Model, which is now dead. The story of Volume II is the story of the triumph of the German Model of checks and balances, a written Bill of Rights, and judicial review over the French Revolution's paranoid fear about gouvernement des juges and of the Ancien Régime. I have to say in closing that I do not believe, as Ran Hirschl does, that judicial review usually emerges because of fading elite hegemonic entrenchment. I also have to say in closing that I do not believe as Tom Ginsburg does that judicial review is the natural result of rational political actors wanting “insurance and commitment.” Ironically, Hirschl’s thesis is too cynical, and Ginsburg’s is too naïve. I think instead that judicial review usually emerges for: (1) umpiring reasons, (2) rights from wrongs reasons, (3) as a result of borrowing, or (4) because a system of checks and balances empowers a Constitutional Court to navigate among many elected entities. A key problem with both Hirschl’s and Ginsburg’s case studies, in my opinion, was that they examined only a small number of highly atypical regimes:  Canada, Israel, South Africa, New Zealand, South Korea, Taiwan, and Mongolia. I have tried in contrast to look at the seventeen most important and powerful democracies on the planet. The G-​20 nations are a group of economic powerhouses with substantial populations and productivity set up by President Obama and not a category identified by me. By looking at judicial review in President Obama’s G-​20 constitutional democracies, I have avoided any inadvertent cherry-​picking. I added Israel and the European Court of Human Rights to my list of covered jurisdictions only because I thought they were too important to be overlooked. The seventeen jurisdictions that I examined in Volumes I and II cover all six inhabited continents in the world and include an equal mix of common law and civil law legal systems. I cover the New World, as well as the Old World; and the Global South as well as the Global North. I cover rich countries and poor countries. I cover countries that are racially, ethnically, and religiously diverse. I cover the world’s most populous Protestant, Catholic, Jewish, Islamic, and Hindu countries.   I cover countries with revolutionary constitutions, elite bargained constitutions, and evolutionary constitutions, as these three forms are described

Conclusion  317 in Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019). Professor Bruce Ackerman, to whom these two books are in part dedicated, argues brilliantly in Revolutionary Constitutions that we should study the great twentieth century revolutions on a human scale like those in India and in South Africa. I  completely agree. But, Professor Ackerman would be the first to acknowledge that it is just as important to study the success of constitutionalism in Germany, Japan, and Brazil, which were not constitutional democracies before 1945. And, it is also important to study the evolutionary constitutionalisms of the European Union and of the Council of Europe, both of which have emerged as Hayekian systems of spontaneous order since 1945, uniting Europe in a way that it has not been united in over five hundred years. I close where I began with the observation that in 1945, only three countries in the world had judicial review of the constitutionality of federal legislation: (1) the United States, (2) Canada, and (3) Australia. And, of these three countries, only the United States had a judicially entrenched Bill of Rights. In 2021, U.S. style judicial review and a Bill of Rights are present in the following countries: (1) the United Kingdom, (2) France, (3) Germany, (4) Italy, (5)  Japan, (6)  India, (7)  Canada, (8)  Australia (only as to judicial review), (9) South Korea, (10) Brazil, (11) South Africa, (12) Mexico, (13) Indonesia, (14) the European Union, (15) the Council of Europe, which supports the ECtHR and (16) Israel. Australia (17) has judicial review but no written Bill of Rights. This is a huge change, which has occurred over the last seventy-​five years, which is a cause for both celebration and reflection. As I was writing these two books, a wave of Trumpian populism and nationalism was buffeting the nations of the world, and there was in Japan, India, Israel, Turkey, the Philippines, China, and Russia, a disturbing fascination with rule by strong men. This made it all the more important for me to focus on buttressing systems of checks and balances and especially judicial review. I very much hope that this global wave of neo-​ fascism is now receding. And, I also very much hope that my two book series on the origins and growth of judicial review in the G-​20 constitutional democracies and in Israel and the ECtHR can contribute to global understanding of and appreciation for this vital institution. I close where I began. The four primary causes of the origins and growth of judicial review of legislation in a constitutional democracy are: (1) the need for a federalism or separation of powers umpire; (2) a rights from wrongs reaction; (3) the existence of checks and balances, which gives a Supreme or Constitutional Court the political space in which to act; or (4) borrowing judicial review in either its diffuse, second look, Kelsenian, or hybrid forms.

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. Abe, Shinzo, 122–​24, 129, 130 abortion law Brazil, 210, 215 European Convention on Human Rights, 181 France,  181–​82 Germany, 102, 107, 107n.174 Italy,  152–​53 Mexico, 236–​37, 238–​40, 243, 244, 246, 248 Acción de Inconstitucionalidad 10/​2000, 239 Acerbo Law, 140 Ackerman, Bruce. See also Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Ackerman) elite bargain, Germany, 41, 56, 64, 112–​13 Age of Enlightenment, 20–​21 Age of Justinian: The Circumstances of Imperial Power, The (Evans), 14n.12 A.L.A. Schechter Poultry Corp. v. United States, 97 Albert, King Charles, 138 Allied military occupation, Germany, 48–​54 Alter, Karen, Establishing Supremacy of European Law, 269, 269n.2, 272, 281–​ 82, 284n.44, 285, 287–​88, 289, 290–​91 amparo, 235, 236, 246–​47 “The Anatomy of a Conservative Court: Judicial Review in Japan,” (Law), 124–​25 Anti-​Corruption Court Case, 262 Argentina, High Court, 208–​9 assembly, freedom of Brazil, 218 European Court of Human Rights, 310 Italy, 150 Japan, 126 South Korea, 194 assembly and association, freedom of, European Court of Human Rights, 310 association, freedom of European Court of Human Rights, 310 European Union, 310 France, Freedom of Association Decision, 174–​75, 177, 183, 186 South Korea, 194

Atomic Weapons Referenda Case I,  85–​86 Aviation Security Case, 110 Ayuntamiento of the City of Temixco, Morelos, 243   Balladur, Eduoard, 178 Balladur committee, 177–​78 Bandini, Domenico, Il Governante Politico Cristiano, 136 Barak, Aharon, 6 Proportionality: Constitutional Rights and Their Limitations, 58, 58n.33, 259 Barbosa, Rui, 33 Bargaining Constitutional Design in Italy: Judicial Review as Political Experience (Volcansek), 156 Barsotti, Vittoria, Italian Constitutional Justice in Global Context, 135, 135n.7, 151 Basic Law (Constitution), Germany Bill of Rights, 42, 44, 56–​58, 64, 68, 99–​100 individual fundamental rights, 44–​104 umpiring plus rights from wrongs, 4–​5 drafting East Germany reunification, 54 post-​1945 and Allied occupation, 51–​64,  114 Eternity clause, 75–​76 federalism amendments, 68 commitment to, 54–​55, 56–​57, 69, 73 federalism, foundational importance, 79–​92 Constitutional Court, early cases decided,  84–​86 Constitutional Court, modern federalism case law, 86–​92 Framers’ goals, 40 Frankfurt Constitution, 44, 79 German Empire, 44 history,  51–​54 individual fundamental rights, 99–​104 Article 1, 99 Article 2, 99 Article 3, 99–​100, 104 other modern, 103–​8

320 Index Basic Law (Constitution), Germany (cont.) interpretation, Constitutional Court, 67 rights from wrongs, 40, 42, 56, 57, 58, 62, 64, 73, 76, 79, 112–​13 Weimar Constitution, 79, 102–​3, 113–​14,  122–​23 on world, 39–​40 writing,  54–​64 Beccaria, Cesare, On Crimes and Punishments and Other Writings, 19n.30 Belgium, Concentrated Model, 28 Bell, John, Jurisdiction of the French Constitutional Council, 179, 179n.37 Berlin, East and West, 50–​52 Berlusconi, Silvio, 143–​44 Berman, Harold, Law and Revolution: The Formation of the Western Legal Tradition, 10, 10n.1 Bianchi, Isidoro, 136 bicameralism Brazil,  207–​8 Germany,  64–​67 Italy,  144–​45 Japan, 119–​20, 121–​22, 129 Mexico,  241–​42 Bickel, Alexander, Least Dangerous Branch: The Supreme Court at the Bar of Politics, 181–​82, 181n.40 Bickford, Lucy, “Federalism and Subsidiarity: Perspectives from Law,” 86, 86n.117, 92, 258, 258n.25 Bill of Rights, Brazil, 211–​12 cases,  215–​28 Bill of Rights, Germany, 42, 44, 56–​58, 64, 68, 99–​100. See also Basic Law (Constitution), Germany individual fundamental rights, 44–​104 umpiring plus rights from wrongs, 4–​5 Bill of Rights, Indonesia, 253 Bill of Rights, Italy, 135, 142, 144, 148, 150, 151, 155 case law, 152–​55 Bill of Rights, Japan, 122, 129–​30 Bill of Rights, Mexico, 243–​45 Bill of Rights, South Korea, 195–​96 Bill of Rights, United States, umpiring plus rights from wrongs, 4–​5 Blair, Tony, Human Rights Act of 1998, 5 Blasphemy Case, The,  262–​63 Bodin, Jean, 158 Boell Case,  105–​6 Bologna, Republic of, 137 borrowing, 2

Brazil, 212–​13, 217, 228–​29 European Court of Justice and European Court of Human Rights, 267–​68,  292 European Union, 293 France, 159, 178–​79, 187 Germany, 62, 113–​14 Indonesia, 251, 264, 265–​66 Japan, 131 Mexico, 238, 248–​49 South Korea, 193, 199 World Bank and IMF aid–​dependent countries,  5–​6 Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic (Skach), 164–​65, 165n.7 Boyron, Sophie, The Constitution of France: A Contextual Analysis, 164, 164n.6 Brandenburg v. Ohio, 303 Brazil (Federative Republic of), 201–​30 bicameral national congress, 207–​8 Bill of Rights, 211–​12 cases,  215–​28 borrowing, 212–​13, 217, 228–​29 Brazilian Association of Distribution Companies v. Brazilian Post, 222 Brazilian Association of Radio and Television Broadcasting Companies v. National Congress and the President of the Republic,  226–​27 Brazilian Socialist Party and the Democratic Labor Party v. the Nation Congress, The, 215 Brazil: Privacy of Correspondence and of Telegraphic Data and Telephone Communications. Antonio Osorio Ribeiro Lopes Da Costa v. Parliamentary Commission of Inquiry,  220–​21 City of Porto Alegre v. Dina Rosa Vieira,  224–​25 Constitution (see Constitution, Brazil) constitutional democracy, 206 Direct Action of Unconstitutionality, 35,  223–​24 economy, 201 equal protection, 215–​16 erga omnes effect, 210, 228–​29 expression, freedom of, 217–​19, 226 federalism,  210–​11 Federal University of Goias v. Marcos Lopes Alves and Others,  223–​24

Index  321 Five Percent Electoral Threshold Case, Brazilian Communist Party and Others v. National Congress and the President of the Republic, 227 General Prosecutor of the Republic v. National Congress, 217 government institutions, 206–​12 Governor of Rio Grande do Sol v. National Congress, 214, 217, 226 hate speech, 219 hegemonic elite entrenchment, 229–​30 Hybrid Model, 32–​37 insurance and commitment, 230 Jewish Center for Religious Education v. the Union, 220 Joao Antonio Volante v. Federal Council of Brazilian Bar Association and Others,  222–​23 Maria Terezinha Oriente Rodriguez de Moraes v. President of the Republic,  221–​22 Marijuana Marches Cases, The, 218 Neves, Tancredo, 206 occupational freedom, 222–​23 population, 201 Preliminary Injunction in Direct Action of Unconstitutionality 4467, 227 president,  206–​7 Progressive Party and the Democratic Labor Party v. Superior Electoral Court, The, 226 proportional representation, 205, 207–​8, 226, 227–​28, 229, 230 Public Prosecutors’ Office of the State of Rio de Janeiro v. State of Rio de Janeiro AgR, 223 racial diversity, 201 racism, crime of, 217–​19 rights from wrongs, 229 same-​sex unions, 210, 217 Sarney, Jose, 206 separation of powers, 201, 204, 205, 214, 215, 227–​28,  229 with proportional representation, 227–​28 Siegfried Ellwander v. Superior Court of Justice,  218–​19 slavery, 204–​5,  216–​17 Social Christian Party, Democratic Labor Party, Christian Labor Party v. President of the Republic and National Congress, 226 speech, freedom of, 218–​19 State of Santa Caterina v. Luciano Angelo Cardoso and Others,  224–​25

states, 201 states and municipal governments, 201 Supreme Federal Tribunal, 33, 208–​10,  212–​13 Uniao Brasileira de Compositories UBC v. Arthur Rodrigues Vilarinho,  225–​26 Vargas, Getulio, 205 Brazil (Federative Republic of), history, 201–​6 constitutional monarchy, 205 Dom Pedro and first Constitution, 204 Native Americans and European “discovery,”  201–​2 Portuguese colonial system, 202 Brazil (Federative Republic of), judicial review,  212–​30 Bill of Rights cases, 215–​28 foundational cases, 214–​15 origins,  228–​30 Brazilian Association of Distribution Companies v. Brazilian Post, 222 Brazilian Association of Radio and Television Broadcasting Companies v. National Congress and the President of the Republic,  226–​27 Brazilian Socialist Party and the Democratic Labor Party v. the Nation Congress, The, 215 Brazil: Privacy of Correspondence and of Telegraphic Data and Telephone Communications. Antonio Osorio Ribeiro Lopes Da Costa v. Parliamentary Commission of Inquiry,  220–​21 “Brown and the Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts” (Cottrol), 216n.40, 216–​17 Brown v. Board of Education,  124–​25 Bundesrat,  87–​90 Basic Law, Allied writing of, 55, 59, 62 Basic Law, amending, 68 bicameralism,  64–​67 vs. Bundestag, 68 Constitutional Court members, election, 29, 73–​74, 82, 146 federal power, growth, 71–​72 German Empire, 45 Japan, 128 selection, länder, 59, 62, 65–​66, 68, 71–​72, 73–​74, 81,  82–​83 voting rights in (Immigration Act Case),  87–​90 Bundestreue, 85, 111

322 Index Bundesverfassungsgericht. See Germany (Federal Republic of), Constitutional Court and case law Burgerliches Gesetzbuch, 21–​22, 116–​17 Butt, Simon “Central-​Local Relations in Indonesia: Reforming the Integralist State,” 254, 254n.4, 258, 264 Constitution of Indonesia: A Contextual Analysis, The, 251, 253, 254, 255, 256–​ 57, 258–​60,  262–​63   Caiger, J.G., A History of Japan, 115, 116n.2 Calabresi, Steven G., 258, 258n.25 “Federalism and Subsidiarity: Perspectives from Law,” 86, 86n.117, 92, 258, 258n.25 judicial review with federalism, 3 Nomos LV Federalism and Subsidiarity, 92 “On Originalism and Liberty,” 5n.7 “The President: Lightning Rod or King?,” 66, 66n.49 U.S. Constitution and Comparative Constitutional Law, The, 260, 260n.33 Calamandrei, Piero, La Costituzione e la gioventù: Discorso pronunciato da Piero Calamandrei nel gennaio, 133, 133n.1 campaign finance reform Brazil,  226–​27 Mexico, 245 Canadian Charter of Rights and Freedoms, 5 Cappelletti, Mauro, Comparative Constitutional Law 10-​11, 3, 3n.2 Carozza, Paolo G. Comparative Legal Traditions: Text, Materials, and Cases, 17, 17–​18nn.25–​26 Italian Constitutional Justice in Global Context, 135, 135n.7, 151 Cartabia, Marta Italian Constitutional Justice in Global Context, 135, 135n.7, 151 “Key Rights Enshrined in the Constitution,” 146, 146n.47, 150, 150nn.67–​73 case law. See also specific cases and countries civil law tradition and, 22 Case of Dudgeon v. the United Kingdom, 299 Case of Gafgen v. Germany,  305–​6 Case of Hamalainen v. Finland, 299 Case of Zana v. Turkey,  302–​3 Castillejos-​Aragon, Monica, “The Transformation of the Mexican Supreme Court into an Arena for Political Contestation ,” 243

Census Act Case, 104 “Central-​Local Relations in Indonesia: Reforming the Integralist State” (Butt), 254, 254n.4, 258, 264 Chaban-​Delmas, Jacques, 174–​75, 176 Challenging the Secular State: The Islamization of Law in Modern Indonesia (Salim), 254, 254n.3 charismatic leaders and parties, 2, 41 European Convention on Human Rights and Council of Europe, 267 European Parliament, 278–​79 France, 162–​63, 173, 174, 179 Germany, 41, 113 Italy, 135, 140–​41, 156 Japan, 127 Charlemagne, Imperator Romanorum, 15–​16,  273 Charles X, King, 161 Charter of Fundamental Rights, 276–​78, 293 Chirac, Jacques, 176, 177–​78 Chocolate Candy Case, 107 Choper, Jesse “Federalism and Subsidiarity: Perspectives from Law,” 86n.117 Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court, 86, 86n.117 Christian Democracy and the Origins of European Union (Kaiser), 274–​75,  275n.8 Chung-​hee, Park, 190, 193–​94 City of Porto Alegre v. Dina Rosa Vieira,  224–​25 civil law countries. See also specific countries judges’ decisions, 31–​32 civil law countries, history Age of Enlightenment and Enlightenment Revolution,  20–​21 Charlemagne, Imperator Romanorum, 15–​16,  273 Codification Movement, 22 colonial empires (1492-​1800), 19 England, Court of Star Chamber, 17–​18 Irnerius,  16–​17 ius commune,  17–​18 jus commune, 18 Montesquieu,  19–​20 Prussia, 19 Reformation, 18–​19, 20 Scientific Revolution (1452-​1727), 20 civil law countries, history, France Conseil d’Etat, 23–​24

Index  323 Constitutional Court (Council of State), 24, 26, 32 Court of Cassation, 23–​24, 25–​26, 289,  290–​91 French Civil Code (Code Napoleon), 21–​22,  135 French Revolution and Revolutionaries, 19–​20, 21, 23–​24, 157, 159–​60, 161, 162–​63, 169–​71, 172, 177, 183,  184–​85 civil law countries, history, Germany Charlemagne and Imperator Romanorum, 15–​16 German Civil Code (Burgerliches Gesetzbuch), 21–​22,  116–​17 Germanic tribal (folk) law and trials by order,  15–​16 civil law countries, history, Roman law ancient (450 BC-​20 BC), 11–​13 Classical period, 13–​14 Corpus Juris Civilis resurrection, 16–​18 Gaius,  13–​14 ius commune,  17–​18 Jurisconsults,  12–​13 jus commune, 18 Justinian and Corpus Juris Civilis,  14–​15 Polybius,  11–​12 civil law legal tradition, 9–​26 court systems, 25–​26 dominance, 11 fundamentals,  10–​11 history,  11–​25 judicial case law, 22 Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, The (Merryman and Perez-​Perdomo), 20n.31, 21 Civil Service, convention and rights of citizens in,  311–​12 Classroom Crucifix Case II,  106–​7 Clay, Lucius D., Decision in Germany: A Personal Report on the Four Crucial Years that Set the Course of Future World History, 49, 49n.18, 50, 51, 55–​56,  58 Code Napoleon, 21–​22, 135 Codex,  14–​15 Codification Movement, 22 Cohen, William, Comparative Constitutional Law 10-​11, 3, 3n.2 Cole, Charles D., Comparative Constitutional Law: Brazil and the United States, 206, 206n.20

Collings, Justin, Democracy’s Guardians: A History of the German Federal Constitutional Court, 1951-​2001, 48–​ 49, 48n.17, 54, 67 common law contexts and cultures, 9 legal traditions, 9–​11 Common Marital Name Case,  104–​5 communist legal tradition, 10–​11 Comparative Constitutional Law 10-​11 (Cappelletti and Cohen), 3, 3n.2 Comparative Constitutional Law: Brazil and the United States (Cole), 206, 206n.20 Comparative Constitutional Law: Cases and Commentaries (Murphy and Tanenhaus), 42, 42n.7, 69–​71, 116, 116n.3,  119–​20 Comparative Legal Traditions: Text, Materials, and Cases (Glendon, Carozza, and Picker), 17, 17–​18nn.25–​26 Concentrated Model, 27–​32. See also specific countries Constitutional Courts, 27–​32 countries, 32 erga omnes effect, 30, 35 purpose, 30 Concentrated Model, Brazil Declaratory Action of Constitutionality, 36 Declaratory Action of Unconstitutionality, 36 Fundamental Precept of Non-​Compliance Complaint (ADPF), 36 Supreme Federal Court, 33–​35 temporal effects, 36–​37 Concentrated Model, Germany, 28, 29–​31 justice selection and election, 29–​30 Concise History of Modern Korea: From the Late Nineteenth Century to the Present, A (Seth), 189, 189n.2 Concordat Case, 84, 86, 90–​91 Conseil d’Etat, 23–​24, 179, 280, 289, 290–​91 Constituting Equality: Gender Equality and Constitutional Law (Williams), 182, 182n.44 constitution. See also specific countries contexts and cultures, 9 revolutionary, 2 Constitution, Brazil, 33–​34 1st Imperial and Dom Pedro I, 204 1st republican, 33 2nd, Constitution of the Old Republic (1891), 205 3rd (1934) and Vargas, 205 4th, fascist (1937), 205

324 Index Constitution, Brazil (cont.) 5th (1934), 205 6th and 7th, Military-​Civilian Dictatorship (1964–​1985),  205–​6 8th (1988+), 206 1934 changes, 33–​34 amendments procedure, 212, 214–​15 federalism, 205, 210–​11, 229 Imperial Constitution and Moderating Power, 33 post-​independence,  201 slavery, 205 writing, by elite, 229–​30 Constitution, France amendments, 157, 167, 168–​69, 170–​72,  186–​87 Badinter’s proposed, 178 Balladur’s proposed, 178–​79 De Gaulle’s, 173–​75 D’Estaing,  176–​77 Fifth Republic, 165–​72 Constitutional Council, 168 decentralization and federalism, 169–​72 French Senate, 167–​68 National Assembly, 166 presidential lawmaking power, 166 sovereignty and amendment process,  168–​69 Fourth Republic, 161–​64, 165–​66, 168, 175, 177 judicial review, 172–​80 separation of powers, 162, 163, 164, 165 Third Republic, 161–​62, 163, 168, 173 Constitution, Germany. See Basic Law (Constitution), Germany Constitution, Indonesia, 253 amendments, 253, 255, 256–​57 Constitution, Italy adoption,  141–​44 amendment process, 148–​49 Bill of Rights, 135, 142, 144, 148, 150, 151, 155 case law, 152–​55 Bologna, 137 case law, 149–​55 Cisalpine Republic, 137 early modern, 135–​36 foundational judicial review case, 151–​52 Grand Duchy of Tuscany, 136 Statuto Albertino, 138–​39 Constitution, Japan, 115–​24 amendments, 122 Article 9, 118, 121, 122–​24, 125, 126–​27

executive power, 120–​21 MacArthur (1946), 118–​19, 120–​21, 129–​30 Meiji, 45, 117, 118–​19, 121 new, Liberal Democratic Party, 120, 122–​24 post–​World War II, 119–​21 Prussian model, 117 Constitution, Mexico, 231, 233–​35, 236 abortion amendment, 238–​39 federalism,  242–​43 Constitution, Roman Republic, 12 Constitution, South Korea, 190–​91 amendments and amending process, 189–​94, 198 revisions (1988), 191 Constitutional Council (France), 168, 174–​75, 187 Constitutional Court. See also specific countries and topics civil law tradition, 24 Concentrated Model, 27–​32 France, 24, 26, 32 Indonesia,  254–​55 Italy, 32 judicial review success, 6 one case at a time, making case law, 4, 4n.5 power and accountability, 30–​31 South Korea, 191–​92 transition to democracy on, 254–​55 Constitutional Court, Brazil Hybrid Model, 32–​37 Kelsenian, 210 Constitutional Court, Germany, 40, 86–​92 creation, 40 early cases decided, 84–​86 federalism case law, modern, 86–​92 federalism protection, 66 interpretation role, 67 Kelsenian, 57–​58, 62, 113–​14 separation of powers umpiring, 111, 113 Constitutional Court, Kelsenian, 24 Brazil, 210 Germany, 57–​58, 62, 113–​14 “The Constitutional Court” (D’Amico), 147, 147n.49, 149–​50, 149–​50nn.60–​66 Constitutional Court Decision No. 1/​1956: On the Constitutional Court’s Power of Judicial Review, 151–​52 Constitutional Courts, Democratic Values (Ferreres Comella), 32 “Constitutional Courts in East Asia” (Ginsburg), 254–​55, 254–​55nn.5–​12 constitutional democracy, 6 Brazil, 206 Germany, 39

Index  325 constitutionalism. See also specific countries evolutionary, 317 Germany, 31–​44, 45, 54, 106 rights from wrongs, 40 Italy,