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Central and Eastern Europe constitutional

courts and the anti-majoritarian objection to


judicial review.
Sarah Wright Sheive
12,771 words
1 June 1995
Law and Policy in International Business
English
COPYRIGHT 1995 Law & Policy in International Business
I. Introduction
Since the political revolutions of 1989, the Central and Eastern European states have embraced
judicial review as a means of promoting the supremacy of constitutional values and protecting
fundamental rights. Nearly all Central and Eastern European nations have established
constitutional courts modeled after the constitutional courts in Western Europe. Although their
judges are not popularly elected, constitutional courts across Europe have jurisdiction to review
and invalidate parliamentary legislation. Because they have the power to veto through
constitutional review the policy choices of popularly elected representatives in parliament,
European constitutional courts have been criticized as anti majoritarian.
This Note first compares the European and U.S. models of judicial review and suggests reasons
why Western Europe, after World War II, and Central and Eastern Europe, after 1989, chose to
adopt concentrated systems of judicial review. Second, it examines the jurisdictional mandates of
Central and Eastern European constitutional courts(2) and compares them with the jurisdictional
structures of their French and German counterparts. Third, it discusses the anti-majoritarian
objection to European constitutional review, addressing arguments on both sides of the academic
debate. Finally, this Note identifies several practical strategies that Central and Eastern European
nations might pursue to minimize the anti-majoritarian objection.

II. The European Model of Constitutional Review


A. The European and U.S. Models Compared
Judicial review, or a court's power to invalidate a legislative or executive act on grounds of its
unconstitutionality,(3) is structured differently in Europe than in the United States. The most
significant difference between review in the two regions is that the European model features a
concentrated, or centralized, system of review. Under a system of concentrated judicial review,
only specialized courts that have been specifically created to decide constitutional issues exercise
constitutional review. Thus, while the U.S. system of diffuse judicial review authorizes all courts
to consider the constitutionality of legislation, the European model concentrates the power of
judicial review in one tribunal.(4) With few exceptions,(5) European constitutional courts decide
only constitutional questions; they do not adjudicate non-constitutional litigation between
adverse parties.(6)

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Constitutional courts are created expressly by provisions in European constitutions,(7) and they
are independent of ordinary judicial structures. In fact, the provisions establishing constitutional
courts usually are separate from those regulating the ordinary judiciary.(8) While ordinary
European courts generally are not permitted to exercise judicial review of constitutional
questions, these courts may be allowed to refer such issues to constitutional courts for decision,
and they subsequently are bound by constitutional court rulings.(9)
The second major difference between the European and U.S. models of judicial review is that the
European constitutional courts possess jurisdiction to practice abstract review. Abstract review is
not dependent on litigation involving a statute; rather, the court considers the constitutionality of
an item of legislation in principle. When constitutional courts practice abstract review, they need
not examine the factual circumstances of a specific case.(10) By contrast, the U.S. model permits
courts to review constitutional issues only in the context of ripe adversarial lawsuits where
parties have standing to bring a challenge.(11) In sum, judicial review in the United States is
incidental to ordinary litigation, whereas European constitutional courts may decide
constitutional issues in the abstract. As a result, doctrines of standing vary in the European and
U.S. models. U.S. courts will decide constitutional issues only if individual litigants have "a
personal stake in the outcome of the controversy,"(12) whereas public officials - who may lack a
"personal stake" in the sense of the U.S. courts - have standing to initiate abstract review by
European constitutional courts.(13)

B. Why Western Europe Established Concentrated Judicial Review


The concept of judicial review was introduced in the United States at the beginning of the
nineteenth century with Chief Justice Marshall's opinion in Marbury v. Madison.(14) Western
Europe, by comparison, did not fully embrace and institutionalize judicial review of legislation
until after World War II, when constitutional courts were established in Austria, the Federal
Republic of Germany, and France.(15) During the interwar period, France and Germany began
experimenting with the U.S. model of diffuse judicial review. In November 1925, for instance,
the highest court in the ordinary German judiciary pronounced "the power and the duty of the
judge to examine the constitutionality of statutes of the Empire must be recognised."(16)
Similarly, the French Academie des Sciences Morales et Politiques sponsored a publicized
debate in December 1925 in which public law specialists agreed to encourage regular court
judges to review the constitutionality of legislation.(17) In both France and Germany, however,
regular court judges continued to avoid the practice of judicial review.(18)
The U.S. model of judicial review ultimately failed to consolidate a position in Europe for at
least two reasons. First, judicial power in Europe was perceived as too unfocused to be fit for the
task of judicial review.(19) Unlike the unitary U.S. system, which is supervised by the U.S.
Supreme Court, European judicial systems typically contain more than one "higher" court.(20)
For example, the French Cour de Cassation is responsible for ordinary civil and criminal appeals,
while the Conseil d'Etat is the highest court for administrative appeals. The German judiciary has
several higher courts, which are responsible for ordinary civil, criminal, administrative, labor,
tax, and social matters.(21) Moreover, European higher courts typically are staffed by more than
one hundred judges,(22) so that the random composition of judicial panels impedes the
construction of a unified appellate voice. Because higher courts generally lack the power to
select the appeals they decide,(23) they hear thousands of appeals each year, most of which
contribute little to the clarification or evolution of legal principles. Thus the enormous size of the

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courts and their voluminous caseload tend to dilute the decisional authority of European higher
courts.(24)
The composition of the European judiciary also contributed to the perception that European
courts were unsuitable for judicial review. The continental European nations have civil law - or
code-based - legal systems. European judges are "career judges" who enter the judiciary early in
their professional careers and are promoted on the basis of seniority.(25) Ordinary court judges
thus practice technical, rather than policy-oriented, statutory application.(26) Unlike the
mechanical task of applying statutes, the exercise of judicial review requires judges to use
creativity and discretion in interpreting vague constitutional mandates. Constitutional judges are
required to balance and reconcile competing policy preferences. Critics thus saw the U.S. model
of diffuse judicial review as incompatible with the ordinary European judiciary, which is staffed
by professional civil servants whose training is limited to technical statutory application.
By contrast, the concentrated model offered a more appropriate structure for European judicial
review. Specialized constitutional courts are modestly staffed and limited in jurisdiction.
Moreover, because constitutional court judges are chosen by political authorities and have
broader, more policy-oriented training,(27) they may be more capable than ordinary court judges
of exercising judicial review.
Beyond the issues of court structure and judicial competency, another reason for the European
rejection of diffuse judicial review in favor of the concentrated model is the historical notion of
parliamentary supremacy, which may be traced, in part, to popular rejection of judicial abuses
during the ancien regime in France.(28) One central principle of the French Revolution
proclaimed the supremacy of statutory law and demoted the judiciary to the mechanical task of
statutory application.(290 The "law" in continental Europe has since been identified with
legislation, unlike in the United States, where judge-made common law is abundant.(30) U.S.
judges play a prominent role in developing common law and reviewing legislation; in Europe,
parliamentary supremacy negated the concept of judicial lawmaking from an early date. Only
parliament could create law and determine its constitutionality. Ordinary court judges served no
legitimate function in either creating or reviewing binding law. Although Europe ultimately
warmed to the concept of judicial review after World War II, it continued to reject its exercise by
ordinary court judges. Europeans, in general, did not view their judiciary as a coequal branch
with authentic power to review executive and legislative acts. Therefore, instead of adopting the
U.S. model of diffuse review, Europe created a new institution, independent of the judicial
branch, to review the constitutionality of public acts.(31)

C. Why Central and Eastern Europe Adopted the European model


Without exception, the Central and Eastern European nations have adopted the Western
European model of concentrated judicial review.(32) There are at least three explanations for the
adoption of the concentrated model in that region rather than the U.S. model of diffuse review.
One practical explanation is the desire of the Central and Eastern European nations to ally with
the rest of Europe. Poland, Hungary, Romania, and Bulgaria hope to join the European Union
and other organizations that promote European political and economic unity and collective
security. Consequently, those nations followed the Western European example during the
constitution drafting process that began in 1989, and they continue to seek Western European
guidance in the drafting of new legislation.

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The American Bar Association's Central and East European Law Initiative (CEELI), which
provides technical legal assistance to the former Soviet bloc nations, furnishes a useful
example.(33) When Central and Eastern European parliamentarians or legislative assistants
request evaluation of draft legislation, they often ask CEELI to compare it to Western European
legislation and, if possible, to solicit comments from Western European practitioners.
Furthermore, legislative committee members frequently request primary and secondary legal
materials from Western European nations to serve as models during the drafting process.
Although the legislators, judges, and other members of the Central and Eastern European legal
community are receptive to U.S. advice and legal assistance, they typically are more interested in
Western European examples and commentary.(34)
A second explanation for Central and Eastern Europe's choice of a concentrated model of judicial
review follows naturally from a parallel with the Western European experience.(35) Like the
other continental European nations, Poland, Hungary, Romania, and Bulgaria are civil law
countries. Ordinary court judges are professional civil servants who receive specialized training
in technical statutory application. They are seen as lacking sufficient experience in policy-
oriented decision-making to accomplish the task of judicial review. Moreover, the drafters of
Central and Eastern European constitutions did not believe that ordinary court judges could
obtain sufficient training to begin reviewing legislation and other public acts within a reasonable
time.(36) As did Western Europe, therefore, Central and Eastern Europe rejected the U.S. model
of diffuse judicial review in part because of the lack of training and experience of the ordinary
judiciary.
A final reason why Central and Eastern Europe adopted the European model of concentrated
judicial review relates to the role of ordinary court judges under Communist rule. During the
Communist period, the public viewed the Central and Eastern European judiciary as incompetent
and corrupt, equating judges and the judicial system with the state and the Communist Party.(37)
The term "telephone justice" was popularly coined to describe a common practice in which state
officials would contact judges and tell them how to rule in particular cases.(38) When the
constitutional courts were created soon after the 1989 revolutions, constitution drafters hoped to
isolate constitutional review from the ordinary judiciary. The drafters worried that, unless the
task of judicial review was delegated to a specialized court staffed by respected legal
scholars,(39) the public would question its legitimacy. The drafters hoped to send a message of
"out with the old and in with the new,"(40) and they therefore chose the concentrated model of
judicial review to secure public acceptance of the new constitutional order and its primary
defender, the constitutional courts.

III. The Jurisdictional Structures of European Constitutional Courts


Although the Central and Eastern European states have adopted the concentrated model of
constitutional review, each individual country's constitutional court has a unique jurisdictional
structure. Most Central and Eastern European constitutional courts resemble the German
Constitutional Court in their jurisdictional patterns. The Romanian Court, by contrast, is similar
to the French model. The Hungarian Constitutional Court combines elements of both the French
and German models to form the most original jurisdictional structure in the region.
This Part details the jurisdictional mandates of the Central and Eastern European constitutional
courts and compares them with the organization of the German Constitutional Court and the

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French Constitutional Council. The comparison with French and German jurisdictional structures
is useful to the extent that scholarly critiques of the European model may be applied to the new
constitutional courts. The value of comparative analysis of constitutional texts is somewhat
limited, however, because the jurisdictional structures that are established by the Central and
Eastern European constitutions may operate differently in practice. Therefore, the author has
indicated, where possible, the areas in which constitutional provisions have had unexpected
practical applications.

A. Abstract Review
As discussed above, the European model of concentrated Judicial review features abstract review
of parliamentary legislation. All constitutional courts that follow the European model, including
those in Central and Eastern Europe, practice abstract review.(41) The European model features
two types of abstract review: a priori and a posteriori, that is, review before promulgation and
review after promulgation. The French and Romanian courts practice only a priori abstract
review; they consider legislation after it is adopted by parliament but before it is
promulgated.(42) By contrast, most European constitutional courts practice a posteriori abstract
review, where legislation is reviewed after it enters into force. The German Constitutional Court
practices only a posteriori abstract review,(43) and most Central and Eastern European
constitutional courts follow the German example.(44) The Hungarian Court has the broadest
power of abstract review; it is the only court in Central and Eastern Europe that undertakes both
a priori and a posteriori abstract review.(45) Moreover, the Hungarian Court has jurisdiction to
review legislative "omissions" in cases where parliament has not acted but is constitutionally
obligated to do.(46)
Abstract review usually is initiated by political authorities,(47) and in most cases constitutional
courts may not decline jurisdiction.(48) The European model generally grants standing to initiate
abstract review to the president, to the prime minister, to state governments, and to parliament
when members mount sufficient numerical support.(49) Where groups of legislators have
standing to initiate abstract review, parliamentary minorities thus have a second opportunity to
challenge legislation that they opposed unsuccessfully during the formal legislative process.(50)
High public officials and parliamentary minorities have access to all Central and Eastern
European constitutional court,(51) but the Hungarian standing provisions are the most generous.
They state that [e]veryone shall have the right to initiate the proceedings of the Constitutional
Court in cases provided by law."(52) Subsequent constitutional legislation limits standing to
initiate a priori review to public officials; however, all Hungarian citizens are entitled to invoke a
posteriori review procedures.(53) In addition, Hungary has expanded the European model of
Judicial review by allowing its constitutional court to invoke jurisdiction and review legislative
inactivity upon its own initiative.(54) Such standing provisions that allow constitutional courts to
initiate abstract review are unprecedented among Western European constitutional courts.(55)

B. Individual Access
Only the Hungarian Constitution grants private citizens direct access to the Constitutional Court.
Hungarian citizens may petition the Court by one of two methods. First, as noted above, any
natural or legal person in Hungary may initiate a posteriori abstract review; that is, individuals
may petition the Court to review legislation already in force.(56) Second, individuals may refer

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constitutional complaints to the Hungarian Court, provided they allege violation of their
constitutionally protected rights and exhaust other legal remedies.(57) These Hungarian standing
provisions allow even greater individual access to the Constitutional Court than the German
provisions. As in Hungary, German citizens may enter constitutional complaints if they allege
violation of their basic rights by a public act and exhaust other legal remedies.(58) Unlike the
Hungarian procedure, however, the German Basic Law limits individuals to the constitutional
complaint procedure and precludes individuals from initiating abstract review.(59) Universal
access to the Hungarian Court, combined with the Court's lack of discretion to deny review, has
resulted in a flood of petitions by private citizens and, consequently, an unmanageable
caseload.(60)
Private citizens have indirect access to the constitutional courts in Poland and Romania.(61) The
Advocate for People's Rights, or Ombudsman, may initiate abstract review by the Polish
Constitutional Tribunal on the basis of citizen complaints. The Advocate for People's Rights is
appointed by the primary legislative chamber for the express purpose of "guard[ing] the rights
and liberties specified in the Constitution and other provisions. (62) The Ombudsman may
petition the Tribunal to review the constitutionality of any legislative act within the Tribunal's
jurisdiction.(63) The Polish Ombudsman has submitted the majority of petitions received by the
Tribunal.(64)
The Romanian Constitution does not permit individual access to the Constitutional Court;
however, constitutional court judges report that thousands of private citizens nevertheless have
written to the Court to request review.(65) Most letters seek final appeals from judgments
obtained the ordinary court system. The large number of inquiries suggests that the Romanian
Constitutional Court has earned the public respect and confidence that continues to elude regular
court judges. Although they are not authorized to hear complaints by private individuals, some
constitutional judges apparently have responded to citizens' letters.(66) letters.

C. Concrete Review
Like the German Constitutional Court, the Hungarian, Polish, and Romanian courts are
authorized to perform concrete review. Concrete review arises out of ordinary litigation when an
ordinary court judge encounters a constitutional issue as part of the underlying lawsuit.(67)
According to the European model, only constitutional courts are empowered to strike down
unconstitutional legislation. In Germany, for instance, ordinary court judges thus must suspend
proceedings and refer constitutional questions to the Constitutional Court.(68) Nevertheless, the
German Constitutional Court applies its concrete review provisions restrictively, performing
concrete review only if the judges below are convinced that a law is unconstitutional and that the
case cannot be decided without settling the constitutional question.(69)
Certification of constitutional questions to the German Constitutional Court thus depends not on
whether a constitutional issue was raised by a party but rather on whether the ordinary court
judges are persuaded that a legislative provision is unconstitutional and necessary to their
decision. Concrete review is similarly restricted in Poland and Hungary, where judges are likely
to apply statutory law without hesitation and where relatively few judges have filed petitions to
constitutional courts.(70) By contrast, the Romanian concrete review procedures require ordinary
court judges to suspend proceedings and refer questions to the Constitutional Court whenever
constitutional issues are raised by parties to the litigation. (71) As a result, litigants necessarily

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have greater access to constitutional courts under the Romanian concrete review procedures than
under the German, Polish, or Hungarian systems.

D. Other Jurisdictional Categories


In addition to abstract review, individual complaint procedures, and concrete review, European
constitutional courts may exercise Jurisdiction in other limited cases. For example, Central and
Eastern European constitutional courts typically have jurisdiction in cases involving elections,
referenda, impeachment of the president, and the constitutionality of political parties.(72)
Like the French and German courts, the Bulgarian, Hungarian, and Polish courts may review the
constitutionality of unratified treaties.(73) Bulgaria and Hungary both consider international
treaties superior to domestic law and allow their courts to review domestic legislation for
compatibility with international agreements.(74) The Bulgarian Court may rule on the
compatibility of domestic laws with both international agreements to which Bulgaria is a party
and recognized principles of international law.(75) The Hungarian Court may examine only
conflicts between proposed legislation and treaties already binding on Hungary.(76) By contrast,
Poland and Romania do not authorize their constitutional courts to compare domestic legislation
with either international treaties or general principles of international law.(77)

E. Binding Effect of Constitutional Court Decisions


Decisions of Western European constitutional courts typically have ergo omnes effect: when a
legislative act is declared unconstitutional, it is no longer in force and has no further legal
effect.(78) For example, the French Constitution states, "Provision[s] declared unconstitutional
[by the French Constitutional Council] may not be promulgated or implemented."(79) Council
decisions are binding on the President with respect to laws and treaties, on the Government with
respect to proposed regulations, and on the Parliament with respect to proposed bills,
amendments, and standing orders.(80) Similarly, German Constitutional Court decisions are
binding on all public officials.(81) Whether the German legislature complies by repealing voided
provisions, however, depends on the nature of the case and the specificity of the Court's
instructions. Parliamentary compliance has been especially high where the Court has reviewed
politically sensitive legislation through the abstract review procedure.(82)
Most Central and Eastern European states have followed the French and German rule that, once a
law is declared unconstitutional, it is automatically annulled. In Hungary and Bulgaria, for
example, constitutional court decisions are final and binding, and they may not be overruled or
suspended by legislation.(83) In Poland and Romania, by contrast, constitutional court decisions
may be overridden by legislative supermajorities. In Poland, the validity of a Constitutional
Tribunal ruling depends on the level of legislation reviewed.(84) When a substatutory act (85) is
found unconstitutional, Parliament has six months to amend the act, after which the Tribunal's
decision is final and binding.(86) When the Tribunal finds a parliamentary statute
unconstitutional, its ruling may be overridden within six months only by a two-thirds vote of the
primary legislative chamber, which is the same majority required for constitutional
amendment.(87) Similarly, if two-thirds of both Romanian legislative chambers vote not to
amend a statute, the Constitutional Court's decision of unconstitutionality is overridden, and the
statute then must be promulgated in its original form.(88) Unlike in the procedure used in
Poland, the procedure for amending the Romanian Constitution is more exacting than the two-

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thirds majority required to over-ride a Constitutional Court decision. After approval by two-
thirds of both legislative chambers, a Romanian constitutional amendment must be submitted to
a referendum.(89)

F. Selection and Tenure Provisions


Political actors exercise substantial control over the selection of constitutional court judges in the
European states.(90) The predominant method is election by parliament or, frequently,
appointment by the president. In France, for instance, the French President, the President of the
National Assembly, and the President of the Senate share equally in the appointment of nine
judges to the Constitutional Council.(91) Council judges then serve nine-year terms, which are
not renewable.(92) German Constitutional Court judges are elected by both legislative
chambers(93) and serve non-renewable twelve-year terms.(94)
The selection and tenure provisions in Central and Eastern Europe are similar to those in
Germany and France. Like German Constitutional Court judges, Polish and Hungarian
constitutional judges are elected by the legislature.(95) The Romanian Constitution grants the
power to elect judges to the President and both legislative chambers.(96) Bulgaria gives all three
governmental branches an equal share in judicial selection by allowing the President, the
National Assembly, and the highest courts to elect four judges each.(97) Across Central and
Eastern Europe, constitutional court judges are limited to terms of between seven and ten
years.(98) Hungary allows one renewal of its judges' nine-year terms, but reelection is forbidden
in Bulgaria, Poland, and Romania.(99) In spite of the political selection process and the judges'
lack of life tenure, Central and Eastern European judges, like their counterparts in France and
Germany, "have shown little deference to the governments and legislatures that appointed
them."(100)

IV. The Anti-majoritarian Objection to Concentrated Judicial Review


Scholarly commentary on European constitutional courts has focused, in part, on the anti-
majoritarian objection to constitutional review: because constitutional courts lack the democratic
legitimacy of selection through competitive elections, their authority is antidemocratic to the
extent that courts may overrule legislation passed by popularly-elected parliaments. European
constitutional review is criticized for allowing judges to substitute their policy preferences for
those of elected representatives.(101) Although this criticism is leveled at both concentrated and
diffuse systems of judicial review, the anti-majoritarian objection is especially powerful when
constitutional courts practice abstract review of parliamentary legislation. This Part will survey
the literature on both sides of the debate, with a view toward identifying practical strategies for
increasing the democratic legitimacy of Central and Eastern European constitutional courts.

A. Criticisms of the European Model of Judicial Review


The European model of judicial review is criticized for allowing judges to exercise legislative
power.(102) Abstract judicial review permits constitutional courts to alter legislative outcomes
and foreclose policy initiatives that might otherwise be open to popularly elected legislatures and
governments.(103) Constitutional courts exercise legislative power in several ways. First, the
French model of constitutional review, a prior abstract review, requires the Council to intervene

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in the legislative process. The Council reviews legislation immediately after passage by the
National Assembly and Senate but before promulgation. Although the Council does not review
all legislation, it has reviewed all budgets since 1974 and virtually all "major" legislation since
1981.(104) Because the Council approves all significant legislation before it enters into force, the
Council has been called a third legislative chamber.(105) Review by the Constitutional Council
effectively extends the legislative process. (106)
Second, constitutional courts become enmeshed in the legislative process when legislative
minorities use abstract review procedures for political ends.(107) French parliamentary
minorities frequently invoke the abstract review mechanism. They petition or threaten to petition
the Constitutional Council to obstruct legislation proposed by the government and its
parliamentary majority.(108) Whether or not a particular statute is likely to pass constitutional
muster, the legislative minority may delay its promulgation through petition to the Constitutional
Council. The threat of referral limits the number of proposals the French government is willing
to submit for consideration and causes the majority to amend legislation or abandon certain
policy initiatives to suit the minority.(109) Abstract review produces similar results in Germany
where the a posteriori abstract review procedure also may be invoked by the parliamentary
opposition to further its political goals.(110) Parliamentary majorities in Germany are even more
risk averse in constitutional matters than in France. Although fewer statutes are submitted for
review by legislative minorities in Germany than in France, German legislators are more willing
to compromise when the minority threatens to petition the Constitutional Court.(111)
Third, the impact of constitutional courts on the policy making process is reflected in the
legislative response to court decisions. In France and Germany, no legislative text has been
invalidated after having been amended in response to a constitutional court decision.(112)
Legislation that has been found unconstitutional frequently is revised in strict compliance with
constitutional court decisions. Rather than risk further rulings of unconstitutionality, legislators
allow constitutional courts to dictate, word for word, the language of new legislation. To the
extent that constitutional court judges actually compose statutory language, they perform a
distinctly legislative function. According to some commentators, the revised laws reflect the
policy preferences of constitutional 13 judges over the initial policy choices of elected
legislators.(113) Moreover, strict legislative compliance is more likely when constitutional courts
perform abstract review than when they invalidate legislation at issue in individual cases. In
Germany, for example, legislators are more inclined to adopt the language of constitutional court
decisions when those decisions are the product of abstract review than when they result from
concrete review or individual complaint procedures.(114) Because abstract review is more likely
to induce strict compliance, constitutional court judges have greater influence on the legislative
process than do U.S. judges, who do not exercise abstract review.
Politically initiated abstract review is inherently more anti-majoritarian than concrete review.
Where courts practice both concrete and abstract review, as in Germany, abstract review has
been criticized as antidemocratic to a greater degree than has concrete review.(115) Concrete
review is more consistent with the traditional judicial function of neutral arbitration of disputes
between interested parties.(116) When courts exercise concrete review, their behavior operates
within the judicial paradigm of conflict resolution. Furthermore, the judicial process brings
judges into contact with concrete social problems and realities. Although constitutional court
judges are not politically accountable, concrete review may expose them to "societal
accountability."(117) On the one hand, judicial isolation from the electoral process allows judges

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to maintain neutrality and independence from political pressure. On the other hand, judges in
traditional judicial settings may be closer and more sensitive than politicians to popular needs
and desires.(118) When constitutional courts behave like ordinary courts, therefore, they become
more accountable to majoritarian concerns.
Constitutional judges act less like ordinary judges when they engage in abstract review than
when they engage in concrete review of legislation. Unlike concrete review, which originates in
the ordinary court system, abstract review is initiated by public officials with only a professional
interest in the outcome. Abstract review settles political disputes between legislative factions
rather than disputes between personally involved parties. In comparison with the French
Council's abstract review procedures, the German constitutional complaint and concrete review
mechanisms are more likely to bring the Court into contact with the real-life situations that
generate societal accountability. Similarly, the German Court is more cautious when it exercises
abstract review than when it considers individual complaints or constitutional questions referred
by the ordinary judiciary.(119) Thus when constitutional courts exercise concrete review, the
anti-majoritarian objection is less compelling than when they exercise abstract review.
Furthermore, a priori abstract review is more anti-majoritarian than a posteriori review.(120)
First, a priori review takes place before legislation enters into force; therefore, courts must
determine constitutionality without reference to the application of statutory provisions in factual
settings. Second, a priori review inserts constitutional courts into day-today parliamentary
politics; courts in this situation may become involved in political debates before the conclusion
of the legislative process. Third, a priori review is more likely to be abused by parliamentary
minorities than a posteriori review.(121)
The recent elimination of a priori review in Spain provides a useful illustration. The Spanish
Constitutional Court originally possessed both a priori and a posteriori abstract review
powers.(122) After the legislative opposition repeatedly invoked a priori review procedures to
obstruct the government's reform efforts, the majority abolished a priori abstract review in
1985.(123) The Spanish example underscores the potentially antidemocratic nature of a priori, as
distinguished from a posteriori, abstract review. The threat of petition encourages governments
and legislative majorities to amend or withdraw proposals that are opposed by substantial
minorities. Thus, a priori abstract review permits constitutional courts to influence policy
initiatives under consideration by parliaments. (124) The French Constitutional Council practices
only a priori abstract review; as a result, the Council is more vulnerable than other European
constitutional courts to the anti-majoritarian objection.(125)

B. Arguments Rebutting the Anti-majoritarian Objection to Concentrated Judicial Review


Arguments in support of strong European constitutional courts may, be divided into two
categories. First, various structural provisions and procedural rules increase the overall
representativeness of constitutional courts and limit their power to influence the legislative
process. Second, judicial review enhances the overall democratic quality of the political process
by protecting fundamental rights. To the extent that they reinforce the democratic process,
constitutional courts are less vulnerable to the anti-majoritarian objection.
1. Constraints on Constitutional Courts
The first category of arguments rebutting the anti-majoritarian objection attempts to present as
minimal the unrepresentativeness of European constitutional review. While those who object to

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the anti-majoritarian tendencies of constitutional courts stress the breadth of their powers,
constitutional courts and judges nevertheless are constrained in several ways. For instance,
although it is true that individual judges are not popularly elected, they are selected through a
political process by actors who are subject to reelection and who must choose judges
accordingly. Selection by the political branches thus increases by proxy the courts' overall
representativeness.(126) Also, because constitutional judges have limited tenure and are replaced
periodically, European courts do not experience the problems with life tenure seen in U.S. courts.
The composition of European constitutional courts thus is more likely to parallel the changing
political majority. Furthermore, constitutional courts must issue written opinions that are
exposed to public scrutiny, and their decisions may be overruled by constitutional
amendment.(127) Finally, constitutional courts possess no enforcement mechanism;(128) they
cannot force the legislature to comply with rulings of unconstitutionality. The probability of
parliamentary and executive compliance, therefore, is likely to figure prominently in their
decisions.
Constitutional courts also are constrained by rules that limit their ability to influence the political
process. Like ordinary court judges, constitutional judges must decide cases using legal
argument.(129) They reach decisions through interpretation and application of constitutional
texts rather than through political argumentation. Regardless of any political implications of their
decisions, the courts' approach is couched in legal rather than policy-oriented terms.(130)
Moreover, constitutional courts are limited as political actors. Most European courts may not
initiate review; they merely react to issues that are submitted by politicians (who, theoretically,
act on behalf of their constituents). Consequently, the constitutional courts are limited, vis-à-vis
the political branches, in their ability to shape policy directly.(131)
2. Protection of Fundamental Rights
The second, and perhaps the most frequently cited, justification for European constitutional
review is its protection of fundamental human rights. On the one hand, constitutional review by
an independent judiciary is necessary to guard and promote civil rights against encroachment by
elected officials.(132) Constitutional review is essential to the people's ability to control their
elected agents because, even in democratic societies, legislative and executive officials have
incentive to manipulate political rights to assure reelection.(133) Politicians inevitably are
motivated by their desire to remain in power, and they have strong incentives to employ the
resources and prestige of their elected offices to accomplish that goal.(134) Politicians face a
conflict of interest when their fear of electoral defeat runs up against their commitment to act in
the public interest, and they thus are cynically but widely viewed as incapable of policing
themselves.(135) Indeed, judicial review is considered essential because all systems past and
present of political, non-judicial control of the political branches have proved to be utterly
inefficient.(136) Unlike politicians, constitutional judges generally need not worry about
reelection. Constitutional courts exercise effective control over the political branches precisely
because they are not immediately accountable to the public. Therefore, constitutional courts
fulfill a legitimate monitoring function because of, not in spite of, their anti-democratic nature.
Because it is anti-majoritarian, constitutional review can promote democratic government where
it might be subverted by elected officials acting in personal interest rather than in majoritarian
interest.
As important, when elected officials do act consistently with majoritarian interests, judicial
review prohibits the majority from suppressing the constitutional rights of minorities. Those who

11
favor granting constitutional courts broad jurisdiction inevitably point to the dangers of majority
rule.(137) Popular majorities may tend to devalue the political and economic rights of ethnic and
religious minorities.(138) Judicial review protects minority rights by invalidating legislation that
trespasses on constitutionally protected rights. Constitutional courts thus are the most promising
institutional barriers to majoritarian abuse.(139) Because constitutional judges are not elected,
they are more likely than politicians to uphold constitutional values in the face of majoritarian
attacks. The judges' lack of electoral accountability allows them to veto popular initiatives that
violate the constitution. Paradoxically, therefore, judicial review is democratic precisely because
it is anti-majoritarian.
This argument is especially persuasive when the constitutional rights sought to be protected are
considered essential to a healthy democratic process.(140) Fundamental rights such as freedom
of election, freedom of speech, and freedom of association promote the long-term health of
democratic government. These "democratic" rights require protection so that current minorities
may become future majorities.(141) When constitutional courts preserve rights that are essential
to the maintenance of democratic government, they safeguard future democratic decision
making, Judicial review thus is a democratic exercise because it guarantees minority access to
the political process. By subjecting the majoritarian branches to constitutional review courts
ensure the fairness and permanent representativeness of the political process.(142) Therefore, so
long as constitutional courts reinforce the fundamental rights of all citizens, judicial review
acquires democratic legitimacy.(143)
3. The Dilemma of Constitutional Interpretation
Although most commentators acknowledge that constitutional courts play a legitimate role in
protecting fundamental rights,(144) the process of interpreting constitutional rights involves
significant judicial discretion. When fundamental rights are articulated in a constitutional text,
courts may find guidance in the text. Nonetheless, constitutional rights are not self-enforcing.
Courts must interpret the text, and fundamental rights provisions are likely to be particularly
vague and malleable.(145) One commentator insists that entrenched bills of rights are incapable
of guiding or restraining judges at all.(146) Rather, judicial interpretation of textual rights varies
according to the beliefs and ideologies of individual judges. Furthermore, because most lawyers
and judges come from privileged backgrounds and align themselves predominantly with business
interests, textual rights frequently are interpreted to the detriment of politically disadvantaged
groups.(147) According to this view, because its rights-protecting function is non-neutral,
judicial review cannot be justified on the grounds that it strengthens the democratic process by
enhancing popular power.
Unfortunately, this argument fails to explain why European legislators would be more effective
than the judiciary at protecting individual rights. To be sure, the ideologies and political beliefs
of individual judges influence constitutional court decisions. However, members of European
parliaments traditionally have received greater prestige and remuneration than their judicial
counterparts. In fact, European constitutional courts frequently are staffed by relatively low-paid
university professors.(148) Assuming, arguendo, that constitutional judges are non-neutral, there
is little reason to believe that parliamentarians would take a less conservative approach to the
enforcement of constitutional rights.
In addition to the inherent subjectivity of the interpretation of entrenched constitutional rights,
European courts also have been challenged for their increasing willingness to create new rights
where the constitutional text is silent.(149) For example, in 1971, the French Constitutional

12
Council incorporated the Preamble of the 1946 Constitution into the 1958 Constitution, which
contains no express declaration of rights, thereby granting itself jurisdiction over unremunerated
fundamental rights.(150) One commentator posits that courts rely more on their jurisdiction over
rights during periods of greater judicial involvement in policy-making processes.(151) Protection
of fundamental rights generally is viewed as a legitimate function of constitutional courts, and
the courts are less likely to be criticized for judicial activism if their decisions are grounded in
fundamental rights provisions. Consequently, their jurisdiction over rights does offer
constitutional courts a potential tool to conceal or obscure judicial interference in the legislative
process.
If true, this observation creates a paradox. On one hand, judicial review is democratic to the
extent that it protects rights that are indispensable to a democratic political process. On the other
hand, the more that judges rely on their rights-protecting function, the greater the probability of
judicial overreaching. Although protection of fundamental rights frequently is cited as a
justification for anti-majoritarian judicial review, the exercise of jurisdiction over individual
rights may actually exacerbate the problem of the legitimacy of constitutional review in a
democratic society.

C. The Anti-majoritarian Objection in Central and Eastern Europe


The anti-majoritarian objection to judicial review is particularly troubling in Central and Eastern
Europe.(152) Compared to voters in France and Germany, Central and Eastern European voters
are less familiar with the notion of parliamentary democracy, in which governmental legitimacy
is assured through periodic elections. Although parliamentary systems have been adopted across
the region, the concept of electoral legitimacy is still evolving. Because many current
parliamentarians also held political positions during the Communist period, the legislative
institution is not yet perceived as truly representative of popular interests. As a result, when
constitutional courts possess and exercise broad jurisdictional power to review parliamentary
legislation, the notion of representative democracy is diminished in the public's eyes.(153)
On the other hand, the need for protection of fundamental rights in Central and Eastern Europe is
clear. Because many legislators have ties to the old regime, the public understandably fears that
fundamental rights articulated in the new constitutions will not be enforced in practice. The
Communist constitutions purported to safeguard political rights; in practice, however, those
rights were often unrealized. Constitutional review protects the public against the dilution of
fundamental political rights by parliament. The need to protect minority rights is especially
compelling in Central and Eastern Europe, where many countries house substantial minority
populations and where ethnic and religious divisions are centuries old. Furthermore, majoritarian
institutions in the region traditionally have been willing to persecute minorities. The new
constitutional courts offer the best hope of protecting minority rights against encroachment by
the political branches. The challenge facing Central and Eastern Europe is to minimize the anti-
democratic nature of judicial review without sacrificing the ability of constitutional courts to
protect fundamental rights.

13
V. STRATEGIES TO MINIMIZE THE ANTI-MAJORITARIAN OBJECTION IN
CENTRAL AND EASTERN EUROPE

The previous section reveals that the anti-majoritarian objection is influenced by the
jurisdictional structure of constitutional courts. Abstract review of legislation tends to intensify
the anti-majoritarian objection. (154) The most obvious strategy to minimize the
unrepresentativeness of constitutional review in Central and Eastern Europe is to eliminate
abstract review and adopt the diffuse model of judicial review. Indeed, during the early stages of
constitutionalism in that region, some commentators argued against the creation of specialized
constitutional courts with unique jurisdiction to review legislation. They favored diffuse systems
of judicial review in which courts at every level would have jurisdiction to review official acts
for constitutionality. (155) As discussed above, however, Central and Eastern Europe followed
France and Germany and adopted the concentrated model of judicial review. (156) Because
abstract review is a principal characteristic of the European model, Central and Eastern European
nations are unlikely to abandon abstract review altogether.
A more practical strategy to increase the democratic legitimacy of constitutional review is to
eliminate a priori abstract review because a priori review is more anti-majoritarian than a
posteriori abstract review. (157) A priori review allows courts to intervene at an early stage in
the legislative process. Moreover, a priori abstract review permits legislative minorities to
impede the parliamentary process by threatening to petition the constitutional court before
legislation is promulgated. If a priori review were eliminated, the Hungarian and Romanian
constitutional courts would be less anti-majoritarian because judicial review would occur only
after the conclusion of the legislative process. (158) Although the constitutional courts could still
veto legislative acts after promulgation, they would be further removed from the legislative
process than they are under a system of apriori abstract review.
Proponents of a priori review laud its ability to preclude application of unconstitutional
legislation. (159) Review of statutes before they enter into force prevents unconstitutional acts
from being applied to particular individuals. Thus, a priori review potentially averts the
infringement of fundamental rights by unconstitutional legislation. If a priori review is
maintained in Central and Eastern Europe, however, it should be exercised only in conjunction
with a posteriori review. Where courts practice only a priori abstract review, the ability of a
priori review to prevent constitutional violations is outweighed by its tendency to exacerbate the
problem of democratic legitimacy. (160) Courts that practice only a priori review are more
vulnerable to the anti-majoritarian objection. (161) Therefore, following the Hungarian example,
the Romanian Court should be permitted to exercise a posteriori as well as a priori abstract
review.
Another strategy to increase the representative ness of constitutional courts in Central and
Eastern Europe is to grant them jurisdiction over constitutional issues that arise in cases being
adjudicated in the regular court system. Concrete review is less anti-majoritarian because it more
closely resembles the traditional judicial function of neutral dispute resolution. (162) Courts gain
societal accountability when they preside over adversarial proceedings between actual litigants.
(163) When constitutional courts exercise concrete review, they gain exposure to popular needs
and desires and become more representative. Moreover, where constitutional courts have
jurisdiction to exercise concrete review, abstract review procedures are less prominent in the

14
overall caseload and in the public perception of the courts' systemic role. (164) Therefore, the
exercise of concrete review further mitigates the anti-majoritarian nature of abstract review.
Unfortunately, concrete review traditionally has been restricted in European court systems. The
restrictions may originate from the constitutional court - as in Germany (165) or from ordinary
court judges - as in Poland and Hungary - who are reluctant to certify constitutional questions.
(166) Restrictions on concrete review require near certainty that a law is unconstitutional before
an ordinary court judge will petition the constitutional court for review. As a result, only
successful challenges to legislation are referred, and concrete review benefits defenders of
legislation more than challengers. To obtain constitutional review, litigants challenging
legislation must persuade the lower court of a statute's unconstitutionality. If the lower court is
unconvinced, the litigants have no recourse to the constitutional court. Where Central and
Eastern European constitutional courts exercise concrete review, ordinary court judges should be
required to suspend proceedings and petition the constitutional court whenever a constitutional
challenge presents a serious question. (167) Romania has gone one step further by requiring that
regular court judges refer all constitutional questions raised by parties to litigation. (168) The
Romanian provision dramatically increases the access of litigants to constitutional review.
Another strategy to increase the courts' democratic legitimacy is to grant Central and Eastern
European constitutional courts jurisdiction Individual constitutional complaints. Review of
individual complaints, plaints, like concrete review, would increase the courts' societal
accountability ability by exposing judges to real people and real problems. (169) Moreover, the
courts' rights-protecting function would be reinforced by expanding the access of private
citizens. Protection of fundamental rights is the most convincing justification for constitutional
review, and the individual complaint mechanism is the most effective means of protecting
fundamental rights. (170) Requiring constitutional courts to define and apply fundamental rights
in the context of actual cases would make constitutional courts less likely to invoke their
jurisdiction over rights to camouflage judicial activism and interference in the legislative
process. (171)
If the individual constitutional complaint is introduced in the rest of Central and Eastern Europe,
however, some screening mechanism should be developed to maintain a reasonable flow of cases
to constitutional courts. Universal access to the Hungarian Constitutional Court has resulted in an
unmanageable caseload. (172) The German Constitutional Court, on the other hand, has created a
committee system to screen out unfounded or procedurally deficient complaints. (173)
Complaints that survive committee consideration then are reviewed by the full Constitutional
Court. The German committee system has been effective in reducing the Court's caseload. The
Court reviews only a small percentage of the complaints received, yet individual constitutional
complaints represent more than ninety percent of the Court's docketed cases. (174) If all Central
and Eastern European constitutional courts are given jurisdiction over individual complaints,
therefore, a system should be devised to decrease the number of docketed complaints while
maintaining individual cases as a large percentage of the courts' overall caseload. Hungary has
taken an initial step in this direction. The Hungarian Parliament has drafted amendments to the
Constitutional Court Act that provide for review of constitutional complaints by three-judge and
single-judge panels. (175) These amendments do not progress far enough, however, because they
do not grant the Court discretion to decline review of frivolous or procedurally deficient claims.
(176)

15
An additional strategy to decrease the anti-majoritarian nature of Central and Eastern European
constitutional courts is to revise the current standing requirements. First, constitutional courts,
like the Hungarian Court, should not be permitted to review legislation or legislative inactivity
on their own initiative (177) because the anti-majoritarian objection is most compelling when
courts may intervene at will in the legislative process. If constitutional courts are allowed to step
into the legislative arena any time they wish, their function becomes more legislative than
judicial.
Second, parliamentary minorities should continue to have standing to initiate abstract review.
Standing for the parliamentary opposition contributes to the anti-majoritarian nature of abstract
review because minority legislators use petition, or the threat of petition, to constitutional courts
as a bargaining tool in the legislative process. However, these standing provisions enhance
democratic legitimacy to the extent that they guarantee minority access to the political process.
The opposition's ability to obstruct the legislative process could be reduced by granting
constitutional courts the power to decline review. If the opposition is not certain that its petition
to the constitutional court will be accepted, its ability to impede the majority's legislative
program will decrease. Because minority access makes the political process more representative,
and therefore more democratic, parliamentary minorities should continue to have standing to
initiate abstract review.
Another strategy to increase the representativeness of Central and Eastern European judicial
review is to allow constitutional courts to review domestic legislation for its compliance with
international treaties and norms of international law. Although some Central and Eastern
European constitutional courts have jurisdiction to review unratified treaties for constitutionality,
only Hungary and Bulgaria consider international national treaties superior to domestic law, and
only Bulgaria considers general norms of international law superior to domestic law. (178) The
rights-protecting function of constitutional courts will be reinforced if they are permitted to
weigh international legal standards in their review of domestic legislation. Commentators
disagree on the extent to which individual judges' ideologies influence their interpretation of
constitutional text. (179) However, general international norms and legal rules expressed in
international agreements may supplement the meaning of an ambiguous constitutional text. If
constitutional judges are permitted to consider international human rights standards as a guide to
interpreting vague constitutional rights, the legitimacy of their decisions will be augmented.
(180) Application of international standards will bolster the courts' legitimacy by reinforcing the
legitimacy of the legal principles applied.
One final strategy to increase the democratic legitimacy of Central and Eastern European
constitutional courts is to maintain the ability of legislatures to overrule constitutional court
decisions but only when the majority required to overrule court decisions is the same as that
required for constitutional amendment. The Polish legislature may overrule Constitutional
Tribunal decisions with a two-thirds majority, which is the same majority required to amend the
Constitution. (181) Such a procedure is the ultimate response to the anti-majoritarian objection.
When a supermajority of legislators is permitted to overrule constitutional court decisions, the
representative legislature acts as a check on the authority of the unrepresentative constitutional
court. Under such a system, legislators are permitted to defend their policies when constitutional
courts intrude too far into the policy-making process, and constitutional courts are no longer able
to substitute their policy preferences for those of parliament. If legislatures can gather sufficient
majorities, their policy programs will not be supplanted by constitutional courts.

16
In most of Central and Eastern Europe, however, court decisions may be overruled only by
constitutional amendment. (182) Constitutional court decisions are made final and binding to
ensure the courts' independence from the political branches. While any effective system of
constitutional review requires judicial independence, a large measure of independence may be
gained by requiring that legislation overruling court decisions be passed by the same majority
required for constitutional amendment. The problem of democratic legitimacy suggests that,
ultimately, the public should make legislative decisions through its representatives. Provisions
allowing legislators to overrule court decisions by the same majority required for constitutional
amendment diffuse the anti-majoritarian objection without sacrificing much in the way of
judicial independence. The benefit is that parliamentary super majorities are able to overrule
court decisions on specific pieces of legislation without altering the constitutional text.
There are two reasons why legislation overriding constitutional court rulings is preferable to
constitutional amendment. First, amendments are incorporated into the constitutional text and,
consequently, into the body of constitutional law to be applied by the court in later cases. As a
result, amendments potentially dilute existing constitutional principles. Even narrowly drafted
amendments are likely to impact future constitutional interpretation. By contrast, legislation
overruling constitutional court decisions has limited precedential effect. In the United States, all
statutes, including any law overriding a Supreme Court decision, must pass constitutional
muster. Because the U.S. Supreme Court determines whether statutes are constitutional, any
overriding legislation becomes part of the general "constitutional law."(183) Unlike courts in the
United States, constitutional courts in Central and Eastern Europe do not review legislation
overriding prior court rulings. As the legislation is not technically constitutional," it forms no
part of constitutional law. In comparison with amendment, therefore, the more limited
precedential effect of overriding legislation is less threatening to existing constitutional
principles.
The second reason why overriding legislation is preferable to amendment relates to the
psychological effect of constitutional amendments. On some level, constitutions embody a sense
of political and moral community among the people whom they govern. (184) When they are
amended, that sense of community becomes fragmented. Respect for constitutional values and
the rule of law may be weakened by frequent constitutional amendment. (185) The constitutional
"community" is especially fragile in Central and Eastern Europe, where democratic government
has only recently been established. The use of legislation, rather than constitutional amendment,
strengthens parliamentary government without jeopardizing the public's underlying commitment
to constitutional values.
When it is no more difficult to overrule the constitutional court than to amend the constitution,
legislators have two equally difficult means of accomplishing the same result. When the majority
required for constitutional amendment is higher, however, legislators are permitted to enact
unconstitutional legislation even if they are unable to gather sufficient votes for constitutional
amendment. In Romania, for example, the legislature may overrule Constitutional Court
decisions by a two-thirds majority in both chambers; however, constitutional amendments
require additional approval by referendum. (186) In the Romanian case, the power to amend
constitutional provisions is vested in the people. Because legislators alone may overrule
Constitutional Court decisions, they are permitted to violate the Romanian Constitution directly.
If constitutional democracy is to have any substantive content, public authorities must not be
allowed to transgress constitutional provisions. Constitutional review was established in Central

17
and Eastern Europe to ensure the supremacy of constitutional values. Even though the Romanian
provision answers the anti-majoritarian objection, it eviscerates the rights-protecting function of
constitutional courts. The challenge facing Central and Eastern European constitutional courts is
not to resolve the anti-majoritarian objection at the expense of fundamental rights protection but
rather to strike a balance whereby democratic legitimacy is maximized and fundamental rights
are secured through the institution of judicial review.

VI. CONCLUSION
Commentary on the anti-majoritarian nature of European constitutional review, particularly in
France and Germany, uncovers several strategies for increasing the representativeness of
constitutional courts in Central and Eastern Europe. This Note has argued first that, short of
eliminating abstract review altogether, Central and Eastern Europe should eliminate a priori
abstract review or at least require that a priori review be exercised only when a posteriori review
is also practiced. Second, constitutional courts should be granted jurisdiction over concrete
review of constitutional issues arising in the ordinary court systems. Third, individuals should be
granted direct access to constitutional courts in Central and Eastern Europe, provided that
screening mechanisms are developed to manage the increased number of constitutional
complaints. Fourth, standing provisions should be revised to prohibit constitutional courts from
exercising abstract review upon their own initiative. Parliamentary minorities should continue to
have standing to initiate abstract review, although their ability to obstruct the legislative process
might be reduced by granting constitutional courts the power to decline review. Fifth, Central
and Eastern European constitutional courts should be permitted to review legislation for
compliance with international agreements and general principles of international law. A final
strategy to minimize the anti-majoritarian objection to judicial review is to maintain the ability of
legislatures to override constitutional court decisions, but only when the supermajority required
to overrule court decisions is the same as that required for constitutional amendment. Many of
these strategies have already been implemented in some Central and Eastern European
constitutional courts. Implementation of the foregoing strategies throughout the region, however,
would maximize the overall representativeness, and therefore the democratic legitimacy, of
judicial review in Central and Eastern Europe.

18
Notes
(1.) Enos Banda, Rule of Law: Cultural and Ideological Challenges, Address at the Law and Policy in International
Business 1995 Symposium: The U.S. and Transition Economies: Legal and Business Strategies for Public and
Private Success (Jan. 20, 1995)
(2.) The following discussion addresses the development and structure of constitutional courts in Bulgaria, Hungary,
Poland, and Romania. Where the author mentions "Central and Eastern European" constitutional courts, she is
referring to courts in those countries. The discussion is limited to those countries for two reasons. First, little
commentary has been published in English on the constitutional courts in other Central and Eastern European
countries, save those in Czechoslovakia and Russia. Second, because of the January 1993 dissolution of
Czechoslovakia and the October 1993 suspension of the Russian Constitutional Court by President Yeltsin, the
existing literature on those courts is out of date.
(3.) A. E. Dick Howard, Introduction to Constitution Making in Eastern Europe 1, 5 (A. E. Dick Howard ed., 1993).
(4.) See Louis Favoreu, Constitutional Review in Europe, in Constitutionalism and Rights 38, 40-41 (Louis Henkin
& Albert J. Rosenthal eds., 1990).
(5.) For example, cases involving elections, referenda, and presidential impeachment. See infra note 72 and
accompanying text.
(6.) See Herman Schwartz, The New East European Constitutional Courts, 13 Mich. J. Int'l L. 74 1, 74.4 (1992)
[hereinafter Schwartz, New East European Constitutional Courts].
(7.) See Allan R. Brewer-Carias, Judicial Review in Comparative Law 185-86 (1989) (arguing that, unlike diffuse
systems of judicial review, concentrated systems must be Created and regulated expressly by Constitutional text. In
both diffuse and concentrated systems, if constitutional supremacy is assumed, courts that apply the law must be
empowered to review legislation for constitutionality. Because courts have inherent powers of review that flow from
constitutional supremacy, only the constitutions themselves may limit the authority of ordinary courts and assign it
to specialized constitutional tribunals.).
(8.) See, e.g., CONST. arts. 56-62 (Fr.); Const. arts. 147-52 (Bulg.); A Magyar Koztarsasag Alketmanya
[Constitution] SS 32/A (Hung.); Konstytucja [Constitution] art. 33a (Pol.); Constitutia arts. 140-145 (Rom.); contra
Grundgesetz [Constitution] arts. 92-104 (F.R.G.).
(9.) Favoreu, supra note 4, at 41. Concrete review, the procedure by which regular courts certify constitutional
questions arising out of ordinary litigation, is discussed more fully below. See infra notes 67-71 and accompanying
text.
(10.) Alec Stone, The Birth of Judicial Politics in Framce 226 (1992); Favoreu, supra note 4, at 41.
(11.) Under article III of the United States Constitution, judicial power extends only to enumerated "cases" and
"controversies." U.S. Const. art. Ill, SS 2; Daniel A. Farber et al., Cases and Materials on Constitutional Law: Thems
for the Conxtitution's Third Century 1045 (1993).
(12.) Baker v. Carr, 369 U.S. 186, 204 (1962).
(13.) See infra notes 47-51 and accompanying text.
(14.) 5 U.S. (1 Cranch) 137, 176-80 (1803).
(15.) The first European constitutional courts were created in 1920 in Austria and Czechoslovakia. Both courts were
disbanded in 1938; however, the Austrian Court was permanently reestablished in 1945. Favoreu, supra note 4, at
51; Brewer-Carias, supra note 7, at 195-96. The German Court was created in the Basic Law of the Federal Republic
of Germany in 1951, and the French Constitutional Council was established in the Constitution of the Fifth Republic
in 1958. Grundgesetz [Constitution] arts. 92-104 (F.R.G.); Const. arts. 56-63 (Fr.).
(16.) Brewer-Carias, supra note 7, at 203-04 (quoting Judgment of Nov. 4, 1965, Reichsgericht (F.R.G.)).
(17.) Favoreu, supra note 4, at 43.
(18.) Id.
(19.) Id. at 45.
(20.) See id.

19
(21.) Mauro Cappelletti, The Judicial Process in Comparative Perspective 49 n. 13 2 (1989) [hereinafter Cappelletti,
The Judicial Process].
(22.) Id. at 49 n. 133.
(23.) Id. at 50.
(24.) Id. at 49-5 1.
(25.) Id. at 5 1.
(26.) Id.
(27.) A large proportion Of European constitutional judges are university professors. Favoreu, supra note 4, at 56-
57.
(28.) Mauro Cappelletti, Repudiating Montesquieu?: The Expansion and Legitimacy of Constitutional justice," 35
Cath. U. L. Rev. 1, 10-18 (1985) [hereinafter Cappelletti, Repudiating Montesquieu].
(29.) Id. at 14.
(30.) Favoreu, supra note 4, at 44-45.
(31.) See id. at 55-56.
(32.) See, e.g., CONST. arts. 147-52 (Bulg.); A Magyar Koztarsasag Alketmanya [Constitution] [sub section] 32/A
(Hung.); Konstytucja [Constitution] art. 33a (Pol.); Constitutia arts. 140-45 (Rom.); see also Herman Schwartz, The
New Courts: An Overview, 2 E. Eur. Const. Rev. 28, 28-29 (1993) [hereinafter Schwartz, The New Courts].
(33.) CEELI has provided assistance to parliamentarians, judges, executive branch officials, and other members of
the legal community in Central and Eastern Europe since 1990. CEELI offers workshops, draft law assessments,
legal training, concept papers, resident liaisons and legal specialists, and a sister law school program.
(34.) Interview with Valerie P. Calogero, Director of the Rule of Law Program at the Central and East European
Law Initiative, in Washington, D.C. (Jan. 26, 1994).
(35.) See supra Part II.B.
(36.) See, e.g., Andrzej Rapaczynski, Constitutional Politics in Poland: A Report on the Constitutional Committee of
the Polish Parliament, in Constitution Making in Eeaster Europe 93, 105-06 (A. E. Dick Howard ed., 1993).
(37.) Interview with Valerie P. Calogero, supra note 34.
(38.) Id.
(39.) Central and Eastern European constitutional courts typically are comprised of university professors, legal
scholars, and distinguished lawyers, rather than professional politicians. See Schwartz, The New Courts, supra note
32, at 29; Schwartz, New East European Constitutional Courts, supra note 6, at 760.
(40) Interview with Valerie P. Calogero, supra note 34.
(41.) Schwartz, The New Courts, supra note 32, at 28-30. In addition to legislation, most Central and Eastern
European courts may review the constitutionality of presidential and ministerial orders. Schwartz, New East
European Constitutional Courts, supra note 6, at 749.
(42.) Const. art. 61 (Fr.); Constitutia art. 144 (Rom.); see also Stone, supra note 10, at 231-32; John Bell, French
Constitutional Law 32-33 (1992).
(43.) Grundgesetz [Constitution] art. 93(i)(2) (F.R.G.). For a useful outlining the structures and mandates of Western
European constitutional courts, see Stone, supra note 10, at 232.
(44.) See, e.g., Const. art. 149(l)(2) (Bulg.); Konstytucja [Constitution] art. 33a(l) (Pol.); see also Georg Brunner,
development of a Constitutional Judiciary in Eastern Europe, 18 Rev.Cent. & E.Eur. L. 535, 545 - 46 (1992).
(45.) Act No. XXXII of 1989 on the Constitutional Court [section] 1 (Hung.).
(46.) Id. [sub section] 1(e), 49. When the Court upholds a claim of legislative inactivity, Parliament must comply
with the ruling within a period of time specified by the Court.
(47.) Schwartz, The New Courts, supra note 32, at 29-30.

20
(48.) Schwartz, New East European Constitutional Courts, supra note 6, at 756.
(49.) In France, standing is limited to the President of the Republic, the presidents of the National Assembly and the
Senate, the Prime Minister, and groups of sixty deputies or senators. Const. art. 61 (Fr.); BELL, supra note 42, at 32.
Similarly, abstract review in Germany may be initiated by the federal government, the Lander governments, or one-
third of the members of the Bundestag. Grundgesetz [Constitution] art. 93(i)(2) (F.R.G.); Donald P. Kommers,
Judicial Politics in West Germany: A Study of the Federal Constitutional Court 106 (1976).
(50.) See Bell, supra note 42, at 32 (French parliamentary. opposition has become "almost the only challenger" of
legislation since granted standing to challenge legislation by a 1974 constitutional amendment.).
(51.) See, e.g., Const. art. 150(l) (Bulg.) (the President, one-fifth of the national legislature, the Council of ministers,
the Prosecutor General, the Supreme Administrative Court, and the Supreme Court of Appeals); Constitutional art.
144 (Rom.) (the President, the presidents of the two legislative chambers, the Supreme Court of justice, and groups
of fifty deputies or twenty-five senators); see also Schwartz, New East European Constitutional Courts, supra note 6,
at 753-56.
(52.) A Magyar Koztarsasag Alketmanya [Constitution] [section] 32/A(3) (Hung.).
(53.) Act No. XXXII of 1989 on the Constitutional Court [section] 21(1) - (2) (Hung.).
(54.) Id. [section] 21(7).
(55.) See Stone, supra note 10, at 232.
(56.) See supra notes 52 - 53 and accompanying text.
(57.) Act No. XXXII of 1989 on the Constitutional Court [sub section] 21(4), 48(1) (Hung.); Stephen I Pogany,
Human Rights in Hungary, 41 Int'l & Comp. L.Q. 676, 679 (1992).
(58.) See Grundgesetz [Constitution] art. 93(1)(4a) (F.R.G.).
(59.) For a brief overview of German constitutional complaint procedures, see Kommers, supra note 49, at 106-07;
see also Helmut Steinberger, American Constitutionalism and German Constitutional Development, in
Constitutionalism and Rights 199, 214 - 15 (Louis Henkin & Albert J. Rosenthal eds., 1990).
(60.) In the first 10 months of 1991, 2010 cases were filed with the Hungarian Constitutional Court; 1620 of these
were brought by private individuals. See Schwartz, New East European Constitutional Courts, supra note 6, at 756
n.71.
(61.) Polish citizens soon may have direct access to the Constitutional Tribunal via a constitutional complaint
procedure. The Constitutional Committee of the Polish Parliament, which has been drafting a new constitution since
1990, apparently has included such a provision in its draft. The provision is modeled after the German constitutional
complaint procedure and would give Polish citizens direct access to the Constitutional Tribunal. See Rapaczynski,
supra note 36, at 106.
(62.) Konstytucja [Constitution] art. 36a(l) (Pol.).
(63.) Mark F. Brzezinski, Constitutionalism Within Limits, E. Eur. Const. Rev., Spring 1993, at 38, 39.
(64.) Id.
(65.) Interview with Valerie P. Calogero, supra note 34.
(66.) Id.
(67.) See Kommers supra note 49, at 105.
(68.) See, e.g., Grundgesetz [Constitution] art. 100(l) (F.R.G.) (requiring stay of proceedings and certification to the
Constitutional Court whenever an ordinary court "considers unconstitutional a law the validity of which is relevant
to its decision").
(69.) Kommers, supra note 49, at 105-06.
(70.) Brunner, supra note 44, at 546-47.
(71.) Id. at 547.

21
(72.) See, e.g., Const. art. 149(5) - (8) (Bulg.); Act No. XXXII of 1989 on the Constitutional Court [section] 1(h)
(Hung.); Constitutia art. 144 (Rom.); see also Brunner, supra note 44, at 548 - 49.
(73.) Const. art. 149(l)(4) (Bulg.); Act No. XXXII of 1989 on the Constitutional Court [section] 1(a) (Hung.); see
also Brewer-Carias, supra note 7, at 210, 256; Schwartz, New East European Constitutional Courts, supra note 6, at
749.
(74.) Act No. XXXII of 1989 on the Constitutional Court [section] 1(c) (Hung.); Const. art. 149(l)(4) (Bulg.); see
also Schwartz, New East European Constitutional Courts, supra note 6, at 749.
(75.) Const. art. 149(l)(4) (Bulg.); see also Rumyana Kolarova, A Self-Restricting Court, E. Eur. Const. Rev., Spring
1993, at 48.
(76.) Act No. XXXII of 1989 on the Constitutional Court [section] 1(a) (Hung.); see also Pogany, supra note 57, at
678.
(77.) Schwartz, New East European Constitutional Courts, supra note 6, at 749.
(78.) Favoreu, supra note 4, at 41.
(79.) Const. art. 62 (Fr.).
(80.) Bell, supra note 42, at 48.
(81.) Kommers, supra note 49, at 272-73.
(82.) Id. at 275.
(83.) Const. art. 151(2) (Bulg.); A Magyar Koztarsasag Alketmanya [Constitution] [section] 32/A(2) (Hung.); see
also Istvan Pogany, Constitutional Reform in Central and Eastern Europe: Hungary's Transition to Democracy, 42
Int'l & Comp. L.Q. 332, 341 (1993); Kolarova, supra note 75, at 48,
(84.) Konstycja [Constitution] art. 33a(2) - (3) (Pol.); see also Brzezinski, supra note 63, at 40.
(85.) Substatutory acts are "regulations and ordinances promulgated by executive agencies pursuant to statutes."
Brzezinski, supra note 63, at 38.
(86.) Id. at 40.
(87.) Konstytucja [Constitution] arts. 33a(2) - (3), 106 (Pol.); Brzezinski, supra note 63, at 40. (
88.) Constitutia art, 145(l) (Rom.); see also Michael Shafir, Romania's New Institutions: The Constitutional Court,
RFE/RL Res. Rep., Oct. 23, 1992, at 47, 47 - 48.
(89.) Constitutia art. 147 (Rom.).
(90.) Schwartz, New East European Constitutional Courts, supra note 6, at 759; Schwartz, The New Courts, supra
note 32, at 29.
(91.) Const. art. 56 (Fr.).
(92.) Id.
(93.) Grundgesetz [Constitution] art. 94(l) (F.R.G.).
(94.) See Kommers, supra note 49, at 88.
(95.) Konstytucja [Constitution) art. 33a(4) (Pol.); A Magyar Koztarsasag Alketmanya [Constitution] [section]
32/A(4) (Hung.).
(96.) Constitutia art. 140(2) (Rom.).
(97.) Const. art. 147(l) (Bulg.).
(98.) See, e.g., Const. art. 147(2) (Bulg.); Constitutia art. 140(l) (Rom,).
(99.) Const. art. 147(2) (Bulg.); Constitutia 140(l) (Rom.); see also Brunner, supra note 44, at 544 nn.28 - 30.
(100.) Schwartz, New East European Constitutional Courts, supra note 6, at 759.
(101.) Bell, supra note 42, at 227.

22
(102.) This process has been termed "judicialization" or "juridicization" of the legislative process. See, e.g., Stone,
supra note 10, at 9.
103. See id. at 11, 225, 241 (discussing the French Constitutional Council).
104. Id. at 251.
105. Alec Stone, Where Judicial Politics are Legislative Politics, in Judicial Politics And Policy-Making In Western
Europe 29, 45 (Mary L. Voicansek ed., 1992).
106. Stone, supra note 10, at 231.
107. See id. at 236 (citing minority opposition successes in France in the 1980s as a result of petitions to the
Constitutional Council).
108. Id.
109. Id.
110. See supra note 49 and accompanying text.
111. STONE, supra note 10, at 236, 238-39.
112. See id. at 24 1.
113. Id.
114. See Kommers, supra note 49, at 275.
115. Stone, supra note 10, at 243-44.
116. See id. at 245-46 (borrowing the judicial paradigm from Martin Shapiro, Courts: A Comparative And Political
Analysis (1980)).
117. Cappelletti, Repudiating Montesquieu, supra note 28, at 26-27; Cappelletti, The Judicial Process, supra note 21,
at 44-46.
118. Cappelletti, The Judicial Process, supra note 21, at 44-45.
119. Stone, supra note 10 at 243 (citing Philip Blair, Law and Politics in West Germany, 26 Pol. Stud. 354, 358
(1978)).
120. Id. at 243-44.
121. See id.
122. See id. at 244.
123. Id.
124. Brunner, supra note 44, at 545.
125. Stone, supra note 10, at 243-44.
126. See Peter Paczolay, The New Hungarian Constitutional State., Challenges and Perspectives, in Constitution
Making iN Eastern Europe 21, 46 (A. E. Dick Howard ed., 1993) (candidates for the Constitutional Court are
nominated by all parties in Hungary's Parliament).
127. Cappelletti, The Judicial Process, supra note 21, at 43-44.
128. See Paczolay, supra note 126, at 46.
129. See Bell, supra note 42, at 229 (discussing the French Constitutional Council).
130. Id.
131. See id.
132. Schwartz, New East European Constitutional Courts, supra note 6, at 747.
133. Jon Elster, On Majoritarianism and rights, E. Eur. Const. Pev., Fall 1992, at 19, 20.
134. Opportunities include changing the timing of elections or taking disproportionate advantage of state-owned
radio and television. Id.

23
135. Cappelletti, Repudiating Montesquieu, supra note 28, at 15; Mauro Cappelletti, The Expanding Role of Judicial
Review in Modern Societies, 58 Revista Juridica 1, 12-13 (1989) [hereinafter Cappelletti, Judicial Review in
Modern Societies].
136. See Cappelletti, Judicial Review in Modern Societies, supra note 135, at 13.
137. See, e.g., Elster, supra note 133, at 19, 20-21; Jonathan D. Varat, Reflections on the Establishment of
Constitutional Government in Eastern Europe, 9 Const. Commentary 171, 171-72 (1992).
138. See Elster, supra note 133, at 20.
139. Id. at. 24.
140. See Varat, supra note 137, at 172.
141. See id. at 172-73.
142. Cappelletti, Repudiating Montesquieu, supra note 28, at 27-28.
143. See Cappelletti, Judicial Review in Modern Societies, supra note 135, at 18.
144. See supra Part IV.B.2.
145. STONE, supra note 10, at 252.
146. Michael Mandel, The Charter Of Rights And The Legalization Of Politics In Canada 36-38 (1992) (discussing
the Canadian Charter of Rights). Mandel argues that the text of the Canadian Charter was not even intended to guide
or restrain judges. Although the Charter was "sold" to the Canadian public as an instrument to transfer power from
the partisan political process to the people through neutral judicial review, the Charter in fact has transferred
political power from Parliament, the elected representative of the people, to the judiciary and the rest of the legal
community. As a result, "the Charter is even less democratic than the parliamentary democracy it is meant to keep
honest." Id. at 38.
147. See id. at 3-4, 38. But see David Schneiderman, The Charter of Rights and the Legalization of Politics in
Canada, 28 Alta. L. Rev. 570, 579 (1990) (book review) (observing that Mandel makes no attempt to analyze the
interests served by legislators).
148. See Favoreu, supra note 4, at 57.
149. See Stone, supra note 10, at 252.
150. See Brewer-Carias, supra note 7, at 259.
151. Stone, supra note 10, at 252.
(152.) See Stephen Holmes, Back to the Drawing Board, E. Eur. Const. Rev., Winter 1993, at 21.
(153.) See id. at 24.
(154.) See supra Part IV.A.
(155.) See, eg., Varat, supra note 137, at 186-87.
(156.) See supra Part II.C.
(157.) See supra notes 120-24 and accompanying text.
(158.) Cf. American Bar Association - Central and East European Law Initiative, Analysis of the Bill on the
Amendment of Act No. XXXII of 1989 on the Constitutional Court of the Republic of Hungary 1 (Oct. 14, 1993)
(unpublished report, on file with the author) (urging removal of jurisdiction over proposed legislation based on
separation of powers principles).
(159.) See, e.g., Brunner, supra note 44, at 545.
(160.) See id.
(161.) See supra notes 124-25 and accompanying text (discussing the French Constitutional Council).
(162.) See supra notes 115-19 and accompanying text.
(163.) See supra notes 117-18 and accompanying text.

24
(164.) Cf. Stone, supra note 10, at 231 (arguing that, in every European constitutional court except the French
Council, "lower profile" concrete review overshadows abstract review).
(165.) See supra note 69 and accompanying text.
(166.) See supra note 70 and accompanying text.
(167.) Schwartz, New East European Constitutional Courts, supra note 6, at 758-59; accord Central and East
European Law Initiative, supra note 158, at 3.
(168.) See supra note 71 and accompanying text.
(169.) See supra notes 117-18 and accompanying text.
(170.) See Matthias Hartwig, The Institutionalization of the Rule of Law: The Establishment of Constitutional
Courts in the Eastern European Countries, 7 Am. U.J. Int'l. & Poly 449, 469-70 (1992).
(171.) See supra note 151 and accompanying text.
(172.) See supra note 60 and accompanying text.
(173.) See Kommers, supra note 49, at 167-70.
(174.) See id. at 167.
(175.) Central and East European Law Initiative, supra note 158 (discussing Bill on Amendment [sections] 13).
(176.) See id. at 2-3.
(177.) See id. at 2 (recommending that "omissions" be "remedied in the legislative process rather than by having the
Constitutional Court dictate legislative policy").
(178.) See supra notes 73-77 and accompanying text.
(179.) See supra Part IV.B.3.
(180.) See Hartwig, supra note 170, at 469.
(181.) See supra notes 84-87 and accompanying text.
(182.) See supra note 83 and accompanying text.
(183.) Frank Michelman, Saving Old Glory: On Constitutional Iconography, 42 Stan. L. Rev. 1337, 1339-54 (1990)
(arguing that a narrowly drafted flag burning amendment" may be no worse than the statutory alternative, which
must be approved by the Supreme Court).
(184.) See id. at 1362.
(185.) See id. at 1360.
(186.) Compare Constitutia art. 145(1) (Rom) Constitutia art, 147 (Rom.).

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