Ratio Juris. Vol. 16 No.

2 June 2003 (223–39)

Constitutional Review in the

United States and Austria:
Notes on the Beginnings
STANLEY L. PAULSON*

Abstract. Despite far-reaching historical and political differences, and despite legal
systems that reflect altogether different traditions, the United States and Austria
manifest striking similarities where some aspects of their respective development
of constitutional review are concerned. For example, on the constitutional review of
federalist issues (competing claims of federal and state law), the review power was
there from the beginning in both countries. And both countries developed a power
of constitutional review reaching to the enactments of the federal legislature. In a
brief sketch of aspects of the early development of constitutional review in both
countries, the author looks, in particular, to the kinds of arguments made on behalf
of constitutional review in the American and Austrian legal systems.

I. Introduction
If the “beginnings” of constitutional review are the field of inquiry, the ques-
tion arises right at the outset: Why talk about these two countries, the United
States and Austria, in the same breath? The answer is straightforward: The
first and most prominent development of what is known as decentralized
constitutional review1 can be traced to the United States of America in
the early decades of the republic. The first—although not, today, the most

* My special thanks to Professor Thomas Mertens, whose kind invitation to participate in his
conference on constitutional review at the University of Nijmegen served as the occasion for
this paper. The Alexander von Humboldt-Stiftung (Bonn—Bad Godesberg) supported my work
on the paper with a three-month research stipend (summer of 2001), during which time I was
in residence in Kiel. I wish to express my gratitude both to the Humboldt-Stiftung and to my
host in Kiel, Professor Robert Alexy.
1
On the decentralized/centralized distinction, see generally Cappelletti 1971, 45–100.

© Blackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.
224 Stanley L. Paulson

prominent2—system of centralized constitutional review was developed in

Austria,3 in the period immediately following World War I.
It goes without saying that the development of constitutional review
in the United States and in Austria was informed by—was, indeed, one
response to—the greater political situation in each country. And, equally
obvious, the respective political situations could scarcely have been more
different. America, near the end of the eighteenth century, had won its war
of independence, its emancipation from the British crown. Its task was the
formation of a new state. In sharp contrast, Austria, early in the twentieth
century, did not seek emancipation. Rather, as one of the many national
divisions emerging from the collapse of the Austro-Hungarian Empire at
the end of the War, the rump state Austria required a new political frame-
work, a new constitution. What resulted, thanks to the Austrian Federal
Constitution of October 1920, was the First Austrian Republic (see generally
Berchtold 1998).4
Despite taking place at very different points in time under extraordi-
narily different political circumstances, in legal systems reflecting altogether
different traditions, the development of constitutional review in the two
countries manifests some striking similarities. Both countries introduced,
at the outset, constitutional review of federalist issues (that is, competing
claims of federal and state or Land law)—America by means of a statute,
section 25 of the Judiciary Act of 1789, Austria in article 140 of its new con-
stitution of October 1920. And both countries introduced forms of constitu-
tional review reaching to the enactments of the federal legislature, that is,
the Congress or Parliament—America in John Marshall’s decision, Marbury
v. Madison (1803), fourteen years after the founding of the Republic, and
Austria from the outset, once again on the basis of article 140.
My aim in what follows is, first, very briefly to sketch these constitutional
developments in the two countries and, second, to take up and consider
some of the respective arguments adduced on their behalf. In particular,
I look, in section II, at developments and arguments in America. Here
the emphasis, as always in the American context, is on “common law” or
judge-made law, and judges made the best arguments—sometimes the only

2
Widely admired, the German Federal Constitutional Court has become the most prominent
system of centralized constitutional review in the world. The Court was established by statute,
12 March 1951, pursuant to the Constitution or Basic Law of 1949. See generally Borowski 2003.
3
A competitor of sorts is the Czechoslovak Constitutional Court, established by statute on 9
March 1920 on the authority of an earlier statute, 29 February 1920, which governed the intro-
duction of the new Czechoslovak Constitution. The Czechoslovak Constitutional Court did not,
however, hear cases at the outset. See generally Weyr 1922, 356, 363; Haller 1979, 61–7; Öhlinger
2002, 583–5.
4
Some of the most important recent research on the constitutional background to the 1920 Con-
stitution may be found in the splendid work Rumpler and Urbanitsch 2000; in particular,
Brauneder 2000 and Stourzh 2000. A useful documentary collection has been edited by Reiter
1997.

© Blackwell Publishing Ltd 2003.

 Constitutional Review 225

arguments—on behalf of the constitutional developments at issue. Joseph

Story in Martin v. Hunter’s Lessee (1816) and Marshall in Marbury v. Madison
(1803) are the most prominent cases in point, and I introduce both of them
here. In Austria, insofar as the sources of constitutional development are
concerned, neither in the period immediately following World War I nor
during the life of the First Austrian Republic itself (1920–34) did judges play
a central role. One figure who did play a monumental role, owing to his
work on the Austrian Federal Constitution of October 1920, was Hans
Kelsen (1881–1973). When I turn to Austria on these constitutional devel-
opments, I shall be focusing in section III primarily on Kelsen’s role as drafts-
man and negotiator, and in section IV on his arguments. Although the
political situations in the two countries were divergent, the factor driving
constitutional review in its early development, in Austria just as in America,
was federalism.

II. Early Developments in the United States: 1789–1816

It was clear to the members of the First Congress in 1789 that the Supreme
Court was to be given power to review decisions of the highest state courts,
namely, those decisions that, on matters of federal law,5 counted against the
federal position. This conferral of jurisdiction was written into section 25 of
the Judiciary Act of 1789.6
The case of Martin v. Hunter’s Lessee, heard by Justice Joseph Story in 1816,
underscored the significance of section 25 as a means of assuring the uni-
formity of federal law. The highest state court in Virginia, the Virginia Court
of Appeals, had held in a decision of 1810 against British subject Philip
Martin in litigation involving Martin’s claim to a tract of land in Virginia.
An 1813 Supreme Court decision reversed the Virginia Court of Appeals,
5
Oddly enough, at least from our current vantage point, the state courts, not the lower federal
courts (first introduced by means of the Judiciary Act of 1789), initially exercised jurisdiction
over “federal questions,” including federal constitutional law. With a single exception in the
early 1800s, lasting only a year, this situation persisted until after the Civil War. As for the lower
federal courts, their most frequently employed jurisdiction initially was “diversity jurisdiction,”
which provided that where the parties to a dispute stem from different states, their case could
be heard in federal court—employing state law. Thus, with only a touch of hyperbole, it can be
said that the original judicial configuration in America called for state courts to hear cases under
federal law, and for federal courts to hear cases under state law.
6
Section 25 reads, in part: “And be it further enacted, That a final judgment or decree in any suit,
in the highest court of law or equity of a State in which a decision in the suit could be had, (1)
where is drawn in question the validity of a treaty or statute of, or an authority exercised under
the United States, and the decision is against their validity; or (2) where is drawn in question
the validity of a statute of, or an authority exercised under any State, on the ground of their
being repugnant to the constitution, treaties or laws of the United States, and the decision is in
favour of such their validity, or (3) where is drawn in question the construction of any clause
of the constitution, or of a treaty, or statute of, or commission held under the United States, and
the decision is against the title, right, privilege or exemption specially set up or claimed by
either party, under such clause of the said Constitution, treaty, statute or commission, may be
re-examined and reversed or affirmed in the Supreme Court of the United States [ . . . ].”

© Blackwell Publishing Ltd 2003.

226 Stanley L. Paulson

holding that Virginia had not perfected its title to the land in question before
the relevant peace treaties had gone into effect, treaties vindicating British
subjects’ claims to land in America. The Virginia Court of Appeals proved
to be utterly recalcitrant, refusing to carry out the order of the Supreme
Court to enter judgment for Martin and contending that section 25 of the
Judiciary Act, on the basis of which the Supreme Court had claimed juris-
diction over the case, was unconstitutional. Justice Story, in the celebrated
case of Martin v. Hunter’s Lessee, upheld the constitutionality of section 25
and adduced arguments on behalf of its significance.
Speaking of the reasons Congress had for providing, in section 25, an
appeal power over state court decisions, Justice Story argued:

A motive [ . . . ] perfectly compatible with the most sincere respect for state tribunals,
might induce the grant of appellate power over their decisions. That motive is the
importance, and even necessity[,] of uniformity of decisions throughout the whole
United States, upon all subjects within the purview of the constitution. Judges of
equal learning and integrity, in different states, might differently interpret a statute,
or a treaty of the United States, or even the constitution itself: If there were no revis-
ing authority to control these jarring and discordant judgments, and harmonize them
into uniformity, the laws, the treaties, and the constitution of the United States would
be different in different states, and might, perhaps, never have precisely the same
construction, obligation, or efficacy, in any two states. The public mischiefs that
would attend such a state of things would be truly deplorable; and it cannot be
believed that they could have escaped the enlightened convention which formed the
constitution. What, indeed, might then have been only prophecy, has now become
fact; and the appellate jurisdiction must continue to be the only adequate remedy
for such evils. (Martin v. Hunter’s Lessee, United States Reports, 14 [Wheaton, 1], 1816,
347f.)7

The evils of which Story spoke would come to a head in John C. Calhoun’s
nullification movement, which marked an effort to break away from the
federal union, to depart in the most dramatic way imaginable from what
Story had called the “necessity” of the “uniformity of decisions throughout
the whole United States.” The danger posed by Calhoun’s effort suggests,
at any rate in a time of political instability, that a constitutional review power
of federalist issues is necessary. Kelsen, too, as we shall see, argued that a
constitutional review power was indeed necessary in a federal system.
Before turning to Kelsen, it is well to look briefly at the other landmark
case in America on constitutional review, Marbury v. Madison. Early in 1801,
William Marbury had been appointed a justice of the peace by the defeated
incumbent Federalist President, John Adams. The Senate, controlled by the
Federalists, confirmed Adams’s last-minute appointees, including Marbury,
on 3 March 1801. Not all of the formal commissions had been delivered
at the end of that day, and when Thomas Jefferson, the new Republican
President, assumed office on 4 March, he directed that the outstanding
7
See generally Haskins and Johnson 1981, 357–65.

© Blackwell Publishing Ltd 2003.

 Constitutional Review 227

commissions not be delivered. Marbury and several others then turned to

the Supreme Court, seeking a writ of mandamus to compel Jefferson’s Sec-
retary of State, James Madison, to deliver their commissions.
John Marshall’s opinion in Marbury can be divided into three parts, first,
the substantive question of whether William Marbury has a right to the
commission, second, the jurisdictional question of whether the Supreme
Court has power to hear the case, and, third, the justification of constitu-
tional review. First, Marshall argued in an entirely conventional way that
Marbury did indeed have a right to the commission, for the commission
“vests” once the President has signed it and the seal of State has been affixed
by the Secretary of State. That these events had taken place was not in
dispute.
In the second part of the opinion, Marshall went on to argue that his court,
the Supreme Court, had no jurisdiction to hear the case. But why this order-
ing, the answer to the substantive question followed by a declaration that the
Court is without jurisdiction? Should not the latter point have come first,
obviating any need for discussion of the substantive question? I return to
this issue below.
Marshall’s approach to the jurisdictional question is twofold. His first
point here is statutory, his second, constitutional. That is, Marshall argued
that the Supreme Court would have jurisdiction over the case only if, first,
the statutory conferral of the power to issue a writ of mandamus, section 13
of the Judiciary Act of 1789,8 fell within the Supreme Court’s original juris-
diction and, second, the Constitution of 1787, in article III, which distin-
guishes between the Supreme Court’s original jurisdiction and its appellate
jurisdiction, reached to and included in its grant of original jurisdiction the
issuance of a writ of mandamus.
Marshall concluded that the statutory conferral of the power to issue a
writ of mandamus purported to apply to the Supreme Court’s original juris-
diction, but—and this is the rub—the Constitution limited such a conferral
of power to the Supreme Court’s appellate jurisdiction. It follows, as
Marshall went on to argue, that the congressional conferral of power, lying
outside the constitutionally prescribed limits, is unconstitutional. So it
was that a provision of a congressional statute was held, in 1803, to be
unconstitutional.
Having come this far, we can return to the question I posed above: Why
did Marshall hear the substantive question ahead of the jurisdictional
question, only to hold, when he turned to the latter, that the Court had no
jurisdiction? The reason is found in Marshall’s political predicament. Like
8
Section 13 reads, in part: “The Supreme Court shall also have appellate jurisdiction from the
circuit courts and courts of the several states, in the cases herein after specially provided for;
and shall have power to issue writs of prohibition to the distinct courts, when proceeding as
courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the
principles and usages of law, to any courts appointed, or persons holding office, under the
authority of the United States” (emphasis added).

© Blackwell Publishing Ltd 2003.

228 Stanley L. Paulson

William Marbury, John Marshall was a Federalist, and the animosity and ill-
will between the Federalists and Jefferson’s Democratic-Republicans ran
deep. Not to decide the case in favor of Marbury was, for Marshall, well-
nigh unthinkable, but how would such a decision play itself out? Issuing
the writ of mandamus, the court order, would simply have elicited ridicule
from Jefferson and his Secretary of State; there was no prospect that Madison
would have complied with a court order to deliver the outstanding com-
missions. Marshall escaped the dilemma by deciding in principle in
Marbury’s favor, but without issuing the court order. To escape the dilemma
in this way required that Marshall hold the mandamus provision in section
13 unconstitutional.9
Despite the decidedly political constellation reflected in the first two parts
of the opinion, Marshall sought to justify in juridico-philosophical terms
the judicial power of constitutional review. In the third and last part of his
opinion, he defends the qualitative distinction between constitutional law
and statutory law by adducing a reductio ad absurdum argument, addressed
to the idea that they are not distinct.

The constitution is either a superior paramount law, unchangeable by ordinary

means, or it is on a level with ordinary legislative acts, and, like other acts, is alter-
able when the legislature shall please to alter it. If the former part of the alternative
be true, then a legislative act contrary to the constitution is not law: if the latter part
be true, then written constitutions are absurd attempts, on the part of the people,
to limit a power in its own nature illimitable. (Marbury v. Madison, United States
Reports, 5 [Cranch, 1], 1803, 177)10

So far, so good. Marshall’s argument fails, however, to demonstrate that the

courts are best equipped to pass on issues of constitutionality.11 No doubt
they are, but the fact remains that Marshall failed to argue the point. (This
failure comes as no surprise if Marshall, in his juridico-philosophical argu-
ment, was wedded from beginning to end to the reductio ad absurdum strat-
egy. No sound conclusion respecting the suitability of the courts to pass
on issues of constitutionality will be forthcoming if the reductio strategy is
employed.) Much later in time, as we shall see, Kelsen addressed nearly the
same question.

III. Early Developments in Austria: 1918–1920

The Austro-Hungarian Empire collapsed in October of 1918. On 16 October
1918, the last monarch of the Empire, Emperor Karl, who had assumed the
9
For an influential statement on the politics of Marbury, see McCloskey 2000, 23–8.
10
See generally Haskins and Johnson 1981, 182–204. Other important statements on Marbury
include Clinton 1989, 81–138, 258–79 (notes); Hobson 1996, 47–71, 222–5 (notes); Nelson 2000;
Newmyer 2001, 157–75.
11
The locus classicus on this point is Judge Gibson’s opinion in Eakin v. Raub, Serg. & Rawle
(Pennsylvania), 12, 1825, 343–58.

© Blackwell Publishing Ltd 2003.

 Constitutional Review 229

throne in 1916 upon the death of Franz Joseph, made a last attempt to save
the old order. Looking to that part of the Empire controlled by Austria, he
announced its reorganization in the form of a federal state whose various
regions, representing the various ethnic groups in the Empire, would be
reconstituted as member states of the federation. The effort came too late.
The non-German peoples of the Empire had already begun the process
of forming independent states, prompting those in the German-speaking
regions of the Empire to do the same (see Kelsen 1920, 245f.; 1923, 74–6).
Their initial step, taken on 21 October 1918, was to form a Provisional
National Assembly (die provisorische Nationalversammlung des selbständigen
deutschösterreichischen Staates). Nine days later, 30 October 1918, the Provi-
sional National Assembly took a second major step, declaring that it would
assume power in the German-speaking regions of the Empire. It was this
latter step that marked the founding of the post-War Austrian state,
“German-Austria” (“Deutschösterreich”), as it was known in the immediate
post-War period.
The Constitution of German-Austria, the “provisional constitution,” as it
is sometimes called, consisted not of a single document but of a number
of decisions taken by the Provisional National Assembly and embodied
in statutes, among them the foundational decision of 30 October 1918 and
a decision of 12 November in which the Provisional National Assembly
declared that the state would adopt a republican form of government.

III.1. The Revolutionary Character of the Provisional Constitution

As Kelsen argues in Part One of his four-part commentary on the provisional
constitution (Kelsen 1919–20), this instrument was revolutionary in char-
acter. That is, this “entirely new legal system” and its constitution stand in
no “juridico-logical relation to the legal system representing the old [i.e.,
pre-October 1918] Austrian state” (ibid., 10, see also 18).12 In a 1920 study of
the provisional constitution, Kelsen pursues further the implications of the
lack of continuity between the old Austrian state and the state created
through the efforts of the Provisional National Assembly. In particular, the

12
Similarly in Czechoslovakia, where Kelsen’s colleague and good friend, Franz Weyr,
described the constitutional situation in terms virtually identical to Kelsen’s own: “[T]he actual
stimulus for founding the Czechoslovak state came [ . . . ] from within at a time at which the
militarily and politically powerless Empire was no longer in a position to ward off our revo-
lutionary movement. The founding took place on 28 October 1918 by means of a statute drafted
by the National Committee (a political union of all the Czech parties, in place long before the
collapse of the Empire). This statute, even if in its introduction it merely makes a statement of
what had already taken place, namely, the formation of the Czechoslovak state, is nevertheless
to be seen as the basic norm (Ursprungsnorm) of the Czechoslovak state and its legal system;
from this norm, the legal system draws its normative validity (normative Geltung). This basic
norm is, then, to be seen as the formal (legal) expression of a politically completed revolution.
Through this norm, the formal continuity between the legal system (constitution) of the old
Austrian state and that of Czechoslovakia is negated”: Weyr 1922, 352.

© Blackwell Publishing Ltd 2003.

230 Stanley L. Paulson

Provisional National Assembly “was not empowered to constitute German-

Austria as an independent state. Because the National Assembly neverthe-
less did precisely that, it consciously cast itself in revolutionary terms.
Revolution—as seen from a legal standpoint—is, however, nothing other
than a break with legal continuity” (Kelsen 1920, 248). And such a break
remains a fait accompli after the revolution even if it is carried out, as in
German-Austria, without a struggle, without blood-letting, even if, in
particular, the entire apparatus of the old state remains intact and places
itself, without resistance—indeed, gladly—at the disposal of the new con-
stitutional order (Kelsen 1923, 78–80).
It is interesting to note, in passing, that the American Constitution of
1787 is likewise a revolutionary instrument in Kelsen’s sense. That is, the
American Constitution of 1787 marks a break in legal continuity with its
predecessor, the Articles of Confederation of 1781. The latter required that
all thirteen states agree to proposed amendments to the document, whereas
the Constitution of 1787 declared, in article VII, that the new constitution
would count as having been ratified as soon as nine of the thirteen states,
in state conventions, had approved it. Thus, from the standpoint of the Arti-
cles of Confederation, the Constitution of 1787 was illegal, a revolutionary
document in Kelsen’s sense.
Alongside the formal discontinuity between old and new constitutions in
Austria and in the United States, there is a nearly complete continuity of
material (or substantive) law. Formal discontinuity and material continuity
are, of course, entirely compatible states of affairs. What is more, the legal
norms representing material continuity will ordinarily be brought into the
new legal system, expressly or tacitly, a process familiar under the rubric of
reception. Kelsen, in his treatise General Theory of Law and State (Kelsen 1945),
a quarter of a century after the drafting of the Austrian Federal Constitution
of 1920, addresses reception in these terms:
If laws which were introduced under the old constitution “continue to be valid”
under the new constitution, this is possible only because validity has expressly or
tacitly been vested in them by the new constitution. The phenomenon is a case of
reception (similar to the reception of Roman law). The new order “receives,” i.e.
adopts, norms from the old order; this means that the new order gives validity to
(puts into force) norms which have the same content as norms of the old order.
“Reception” is an abbreviated procedure of law-creation. (Kelsen 1945, 117)13

The members of the Provisional National Assembly, in section 16 of their

foundational decision of 30 October 1918, had declared that all of the statutes
that had been legally valid in the old Austrian state would have “provisional
validity” (“vorläufige Geltung”) in the new state, German-Austria.14 Surpris-
13
See also Kelsen 1960, sect. 34f., 212–15, and, generally, Moreso and Navarro 1998.
14
Section 16 reads: “Insofar as statutes and other directives were valid in the kingdoms and
Länder represented by the Reichsrat and have not been abrogated or changed by this decision
[of 30 October 1918], they remain, for the present, provisionally valid.”

© Blackwell Publishing Ltd 2003.

 Constitutional Review 231

ingly, Kelsen in his historico-constitutional writings takes issue with this

move. He suggests that the “formulation of the reception clause” of section
16 is “unfortunate,” arguing that from the standpoint of formal discon-
tinuity, the norms carried over into the new legal system in the name of
material continuity are not valid, despite the language of section 16, and
would therefore require, for the sake of legal validity (see Kelsen 1919–20,
28; 1920, 249; 1923, 81f.), reissuance as “formally new law.” If I understand
Kelsen correctly here, this is not compatible with his later, far more congenial
view, as quoted above from General Theory of Law and State.

III.2. Beginnings of the Federal Constitution of 1 October 1920

The Provisional National Assembly did not take up its central task of devel-
oping a full-fledged constitution for Austria until the spring of 1919. Hans
Kelsen, who had been appointed in November 1918 as legal consultant to
Chancellor Karl Renner, was now called upon by Renner to draft a new
federal constitution. In Kelsen’s own words:

In May of 1919, I received instructions from the Chancellor to draft a federal consti-
tution, following up on my earlier preparation of certain preliminary studies. In the
course of the summer of 1919, with the help of the constitutional department in the
Chancellor’s offices, I completed the draft, and throughout the fall it was supple-
mented by several other drafts that were supposed to represent variations on the
basic theme and to take account of the various political options. My guideline was
to preserve everything salvageable from the earlier constitution, to maintain to the
extent possible constitutional continuity with existing institutions, to incorporate the
principle of federalism into the existing tried and true, and, in the effort, to lean on
the Swiss but even more on the new German Constitution as far as I could, consid-
ering the differences in the respective historico-political conditions. (Kelsen 1922,
236; 1923, 160f.)

These lines of Kelsen’s capture his own role succinctly, and he was, indeed,
active during all three phases of the work on the Constitution (see generally
Schefbeck 1995, 88–102). The first phase was marked by preparations that
took place between the spring and fall of 1919 within the Renner govern-
ment. During this first phase, Kelsen worked up no fewer than five drafts
of the federal constitution, whose differences reflected the different percep-
tions of the parties in Renner’s coalition government. For example, Kelsen
accorded particularly favorable treatment to the Länder in the first draft,15
15
Though not so favorable as to accord the Länder equal representation in the upper chamber,
the Bundesrat. And so it remained. As Kelsen wrote in 1922, equal representation of the Länder
would, to be sure, “correspond to the pure type of federal state,” according to which “every
member state is granted equal representation without regard to its size. The point that the
member states are to be equal is given its clearest expression in this [aspect of the pure type of
federal state]. The principle of the so-called arithmetic equality of the member states is realized
in the constitutions of the United States and Switzerland [ . . . ] But there are also federal states
in which the representation of the member states is unequal, thus, for example, the German

© Blackwell Publishing Ltd 2003.

232 Stanley L. Paulson

whereas the second draft marks a strengthening of the ties of the Länder to
the federal unit and contains a supremacy clause (Bundesrecht bricht Lan-
desrecht, to which I shall return). In the fifth draft, Kelsen drew to a greater
extent on the new Weimar Constitution than in the other drafts.16 A second
phase was marked by discussions, reaching into the spring of 1920, that took
place with representatives of the Länder, who tried unsuccessfully to take
control of the proceedings. Kelsen was not present at the Länder-conference
in Salzburg, but he was called as constitutional expert to the Länder-
conference in Linz, which prompted him, along with Renner and others, to
work up still another draft. Finally, a third phase during the summer and
fall of 1920 was marked by negotiations between the parties in Parliament.
During this period, Kelsen worked out a compromise between the views of
the Social Democratic Party and those of the Christian Social Party, melding
their respective drafts into a single instrument that ultimately won the
approval of the Provisional National Assembly and emerged as the Austrian
Federal Constitution of 1 October 1920.

III.3. The Constitutional Court

In his work on the Constitution of 1920, as Kelsen remarked many years
later, it was the provisions on constitutional review, articles 137–48, that had
meant the most to him (Kelsen 1974, 50). The review powers of the High
Court are, in part, familiar from the earlier Reichsgericht or High Court of
the Empire, and they are, in part, entirely new (see generally Kelsen 1922,
263–7; Kelsen, Froehlich, and Merkl 1922, 249–84). I shall limit myself to a
sketch of the highlights (Kelsen, Froehlich, and Merkl 1922, 46–9).
First, the powers taken over from the earlier Reichsgericht comprise arti-
cles 137, 138, and 144 of the Federal Constitution of 1920. These three arti-
cles provide, respectively, for powers in the Constitutional Court to hear
claims stemming from the federal unit, the Länder, and the municipalities
that cannot be settled either by courts of ordinary jurisdiction or by admin-
istrative authorities, to hear competing claims of competence between courts
and administrative authorities, between the Administrative Court (Verwal-
tungsgerichtshof ) and the Constitutional Court, between the Länder, and
between a Land and the federal unit, and, finally, to hear complaints in which
a violation of constitutionally protected rights is alleged, namely, a violation
stemming from the decision of an administrative authority (of the federal

Reich in the Constitution of 1871”: Kelsen, Froehlich, and Merkl 1922, 100; this work is the fifth
part of the commentary to which I refer above, i.e., Kelsen 1919–20, but it is addressed to the
Austrian Federal Constitution of October 1920, not, as with the first four parts, to the provi-
sional constitution.
16
In particular, its sections on “the administration of the federal government” and on “basic
rights and obligations” reflect the Weimar Constitution’s sections on “the Reich administra-
tion” (Weimarer Reichsverfassung [WRV], arts. 78–101) and “basic rights and obligations” (WRV,
arts. 109–65) respectively; see Schmitz 1981, 58.

© Blackwell Publishing Ltd 2003.

 Constitutional Review 233

government or of the government of one of the Länder), but only if admin-

istrative remedies have been exhausted.
In addition to these powers taken over from the old Reichsgericht, the
Federal Constitution of 1920 also conferred certain entirely new powers on
the Constitutional Court. Article 139 provides that the Constitutional Court
is empowered, on the application of a court of ordinary jurisdiction, to hear
cases respecting the legality of ordinances issued by a federal or Land author-
ity. Article 140 provides that the Constitutional Court is empowered to hear
claims respecting the constitutionality of Land statutes, this on the applica-
tion of the federal government, and to hear claims respecting the constitu-
tionality of federal statutes, this on the application of one of the Land
governments. The Court is also empowered to decide cases of the constitu-
tionality of a federal or Land statute ex officio, that is, on its own initiative,
insofar as this is required in order to pass on the constitutionality of a statute
in a case before the Court.
It is this development, the powers conferred on the Constitutional Court
in article 140, that counts, in Kelsen’s words, as “the high point of [the Court’s]
function as the guarantor of the constitution (Garant der Verfassung)” (Kelsen
1922, 264).17 Both developments common to constitutional review in America
and Austria—power to hear federalist issues and power to hear questions on
the constitutionality of parliamentary legislation—are present here.

IV. Kelsen’s Explication and Defense of Centralized

Constitutional Review
We know a fair bit about Kelsen’s explication and defense of centralized con-
stitutional review, thanks to several key papers written during the time
remaining to him in Vienna and Cologne (see, in particular, Kelsen 1929).18
Constitutional review, Kelsen writes, serves as “a judicial guarantee of the
constitution”; it is, in other words, one of a number of “juridico-technical
measures whose purpose is to assure the legality” of those governmental
functions that are carried out in the name of the law (Kelsen 1929, 30, repr.
1968a, 1813).
I begin with a brief statement of Kelsen’s on the concept of constitution,
as distinct from constitutional review. Kelsen’s discussion here fits squarely

17
Kelsen develops the motif “guarantor of the constitution” (“Hüter der Verfassung”) in his reply
to Carl Schmitt; see Kelsen 1931a.
18
The paper stems from Kelsen’s lecture at the annual meeting of the Society of German Public
Law Teachers, held in Vienna, 23–24 April 1928, and is reprinted in Kelsen 1968a. See also
Kelsen 1931a, reprinted, with the addition of an introductory paragraph, as a self-contained
work in Kelsen 1931b; this latter version is reprinted in Kelsen 1968b. Both of Kelsen’s papers
belong to the greater politico-constitutional debate that took place in the Weimar Republic.
Michael Stolleis offers a masterful statement of the greater debate, with attention to doctrine,
personalities, and methodology, in Stolleis 1999, 90–124, 153–86, et passim; the book is forth-
coming in English translation.

© Blackwell Publishing Ltd 2003.

234 Stanley L. Paulson

within his general legal theory. I then turn to Kelsen’s defense, on the merits,
of centralized constitutional review—first, the issue of legality, then the issue
of a centralized system of constitutional review, and, finally, federalism, the
leitmotif in Kelsen’s defense of constitutional review.
For the most part, Kelsen conducts his defense of constitutional review in
the language of Rechtspolitik, roughly “legal policy,” wherein questions are
asked about the most desirable means to a chosen end. Sometimes, of course,
“legal policy” is simply a label for what Bentham called the science of
legislation—those particular measures that ought to be enacted into law. But
at other times, as here, “legal policy” addresses fundamental institutional
reforms—for example, constitutional review.

IV.1. Kelsen’s Concept of Constitution19

Presupposed in Kelsen’s inquiry into the concept of constitution is his
Stufenbaulehre or doctrine of hierarchical structure, according to which “the
law regulates its own creation” (see generally Kelsen 1925, sect. 32–6,
229–55). That is, one legal norm governs the process whereby another legal
norm is created—and the idea applies to the full range of legal norms in the
hierarchical structure. The effect of this dynamic conception, reaching all the
way up and down the hierarchy, is to relativize the differences between law
creation and law application, thereby relativizing the standing of the differ-
ent species of law themselves. In particular, legislation, the standard-bearer
of later nineteenth-century statutory legal positivism (Gesetzespositivismus)
in Europe and Britain, loses its privileged position.
It is only from the vantage point of this “theory of hierarchy,” Kelsen
argues, that the immanent meaning of the concept of constitution is acces-
sible (Kelsen 1929, 36, repr. 1968a, 1819). For it is the constitution that serves
as the fundamental positive-law rule—more precisely, the set of fundamen-
tal positive-law rules—determining the organs and procedures of legis-
lation, and these organs and procedures provide for the remaining Stufen or
levels of the hierarchy. Thus understood, we have in view the “original and
narrower concept of the constitution” according to Kelsen, namely, consti-
tution qua means of allocating legal powers (ibid.). A wider concept of the
constitution includes, in addition to the norms addressing the organs and
procedures of legislation, a catalog of basic rights (Kelsen 1929, 37, repr.
1968a, 1819). Here Kelsen mentions the equality of citizens before the law,
freedom of expression, freedom of belief and conscience, and the inviola-
bility of property (see Kelsen 1929).20 As Kelsen understands them, basic
19
Regrettably, Robert Alexy’s stimulating paper (Alexy 2002), delivered at the Frankfurt Kelsen
Conference, 7–10 November 2002, came to my attention too late for use in the present paper.
20
Elsewhere in the same paper, however, Kelsen expresses great scepticism about whether “the
ideals of ‘justice,’ ‘freedom,’ ‘equality,’ ‘equity,’ ‘morality,’ and the like” are legally explicable
at all, arguing at one point that these “formulae” represent nothing “more than a typical politi-
cal ideology”: Kelsen 1929, 69, repr. 1968a, 1852.

© Blackwell Publishing Ltd 2003.

 Constitutional Review 235

rights and freedoms represent certain constraints on the scope, or the

manner of exercise, of legal powers.21

IV.2. Kelsen on “Legality” and Constitutional Review

The problem of legality (Rechtsmäßigkeit), writ large, is the problem of assur-
ing that law application comports with the law being applied, that the appli-
cation, say, of a statute squares with the statute itself. One can recast legality
in the language of the doctrine of hierarchy, where law creation and law
application, far from standing qua distinct kinds in opposition to each other,
are “merely two levels in the process of law creation, standing to one another
in a relation of superordination and subordination” (Kelsen 1929, 31, repr.
1968a, 1814). Thus recast, legality is simply the “relation of correspondence”
between the lower and higher levels, and constitutional guarantees of legal-
ity translate into “guarantees of the legality of the levels of law” found in
the hierarchy beneath the constitutional level (ibid.).
In his lecture of 1928, Kelsen’s most expansive statement on constitutional
review, he considers, first, options other than a constitutional court, includ-
ing preventive as well as repressive measures, and argues in every instance
that the option in question is unsuitable. In particular, the legislative body—
the body enacting the putatively unconstitutional statute—is ill-equipped to
monitor itself either before or after the fact, that is, either preventively or
repressively. Nothing short of an independent organ with power to invali-
date the unconstitutional statute is worthy of consideration, Kelsen argues.
That independent organ is a constitutional court (Kelsen 1929, 53, repr.
1968a, 1836).

IV.3. Kelsen on the Virtues of Centralization

In a paper of 1942, Kelsen addresses the merits, as he sees them, of a cen-
tralized system of constitutional review over the decentralized system in
America (Kelsen 1942). As is well known, all American courts of ordinary
jurisdiction, federal and state courts alike, have power to hear questions
of federal constitutional law so long as the case posing the question has
been brought before the court in the appropriate way. When, however, the
American court holds that a legal norm is invalid for want of constitu-
tionality, that is an inflated way of saying that the court is setting the norm
aside for the case at hand. Unlike the European constitutional courts, no
American court—neither the state courts of Wyoming nor the Supreme
Court in Washington—has power literally to abrogate the offending legal
norm. What might loosely be described as the “abrogation” of an offending

21
The same view of the nature of basic rights and freedoms in the law is defended by H. L. A.
Hart, reflecting Kelsen’s influence on Hart; see Hart 1961, 68 et passim.

© Blackwell Publishing Ltd 2003.

236 Stanley L. Paulson

legal norm comes about, if at all, only by way of the doctrine of stare decisis,
which has the courts “standing by what has been decided.”
It is this combination of factors—the limited power of the American court
along with the fact that every American court has that power—that Kelsen
criticizes.

The disadvantage of [the American model] consists in the fact that different law-
applying organs may have different opinions with regard to the constitutionality of
a statute and, therefore, that one organ may apply a statute because it regards the
statute as constitutional whereas [another] organ will refuse application on the
ground of the alleged unconstitutionality of the statute. (Kelsen 1942, 185)22

In short, Kelsen sees lack of uniformity as a serious drawback of the decen-

tralized system of constitutional review. What is more, Kelsen argues, lack
of uniformity means that we may not know in a given instance whether the
statute in question is constitutional, and that, in turn, poses “a great danger
to the authority of the constitution” (Kelsen 1942, 185).

IV.4. Kelsen on Federalism and Constitutional Review

Constitutional review, Kelsen writes, “acquires its greatest significance
[ . . . ] in a federal system” (Kelsen 1929, 81, repr. 1968a, 1865). Indeed, he
argues, the political idea to which federalism gives expression is “only
brought to completion with the institution of constitutional review” (ibid.).
Kelsen sketches the nature of the federal system, first, in terms of its bodies
or governmental units—the federal unit (or Bund) and the member states (or
Länder)—and, second, in terms of the umbrella constitution (Gesamtverfas-
sung) that, he argues, regulates both types of governmental unit.23 The
umbrella constitution marks the basic difference between the three-sphere
conception of federalism defended by Kelsen and the two-sphere scheme
familiar from conceptualizations of, for example, the German federal sys-
tem. Kelsen defends his conceptualization with, inter alia, his reasons for re-
jecting the principle of federal supremacy, Bundesrecht bricht Landesrecht,
familiar from article VI of the American Constitution of 1787 and from article
31 of the German Constitution of 1949. This principle, Kelsen argues, “para-
doxically hides from view the necessity of a constitutional court for the
federal system” (Kelsen 1929, 83, repr. 1968a, 1867), as though the principle
itself were up to the task of resolving competing claims of competence in
the federal system. If the federal system is going to be protected effectively,
“then federal law cannot undermine state or Land law any more than state
or Land law can undermine federal law.” Instead, the claims of both units,

22
See also Kelsen 1929, 48, repr. 1968a, 1831.
23
On the puzzles surrounding the difficult notion of a so-called umbrella constitution
(Gesamtverfassung), see Öhlinger 1976.

© Blackwell Publishing Ltd 2003.

 Constitutional Review 237

federal and state, are to be assessed from the standpoint of the umbrella con-
stitution, which limits the respective spheres of validity of both units. This
task, the assessment of competing federal and state claims of competence,
“cannot be carried out other than through a constitutional court” (Kelsen
1929, 84, repr. 1968a, 1867).

V. Concluding Remark
Kelsen’s leitmotif, expressed again and again both in the materials on
the formation of the Austrian Federal Constitution and in his own historico-
constitutional writings, was the need for constitutional review in a
federal system. By contrast, Kelsen treated “the ideals of ‘justice,’ ‘freedom,’
‘equality,’ ‘equity,’ ‘morality,’ and the like” with great scepticism (see Kelsen
1929, 69, repr. 1968a, 1852).24 In a word, constitutional protection of basic
rights was not driving the effort that culminated in the Austrian Constitu-
tional Court.
The situation in the United States was not markedly different. The jury is
still out on the question of whether the rule of Marbury v. Madison was
understood by the Constitutional Framers in Philadelphia as inevitable, or
whether it was a fluke, prompted by an extraordinary political constellation.
What is clear, however, is that a half-century would pass before federal law
was again overturned on constitutional grounds—and then only in the
utterly wrongheaded and tragic Dred Scott case (Dred Scott v. Sandford,
United States Reports, 60 [Howard, 19], 1857, 393–633). In fact, the power of
constitutional review addressed to congressional legislation did not begin
to aggregate until late in the nineteenth century, almost a hundred years
after the founding of the Republic. By contrast, the power of constitutional
review addressed to federalist questions had become everyday fare, with
countless cases throughout the nineteenth century and beyond.

Washington University
School of Law
Campus Box 1120
One Brookings Drive
St. Louis, MO 63130-4899
email: paulson@wulaw.wustl.edu

References
Alexy, Robert. 2002. Kelsens Verständnis von “Verfassung.” Manuscript.
Berchtold, Klaus. 1998. Verfassungsgeschichte der Republik Österreich. Vol. 1: 1918–1933.
Vienna: Springer.

24
See note 20 above.

© Blackwell Publishing Ltd 2003.

238 Stanley L. Paulson

Borowski, Martin. 2003. The Beginnings of Germany’s Federal Constitutional Court.

Ratio Juris 16: 155–86.
Brauneder, Wilhelm. 2000. Die Verfassungsentwicklung in Österreich 1848 bis 1918.
In Die Habsburgermonarchie 1848–1918. Vol. 7: Verfassung und Parlamentarismus. Ed.
Helmut Rumpler and Peter Urbanitsch, 69–237. Vienna: Verlag der österreichi-
schen Akademie der Wissenschaften.
Cappelletti, Mauro. 1971. Judicial Review in the Contemporary World. Indianapolis, IN:
Bobbs-Merrill.
Clinton, Robert Lowry. 1989. Marbury v. Madison and Judicial Review. Lawrence, KS:
University Press of Kansas.
Haller, Herbert. 1979. Die Prüfung von Gesetzen. Vienna: Springer.
Hart, H. L. A. 1961. The Concept of Law. Oxford: Clarendon.
Haskins, George L., and Herbert A. Johnson. 1981. Foundations of Power: John Mar-
shall, 1801–1815. New York, NY: Macmillan.
Hobson, Charles F. 1996. The Great Chief Justice: John Marshall and the Rule of Law.
Lawrence, KS: University Press of Kansas.
Kelsen, Hans. 1919–20. Die Verfassungsgesetze der Republik Deutschösterreich. Part 1.
Vienna: Deuticke.
——— . 1920. Die Verfassung Deutschösterreichs. Jahrbuch des öffentlichen Rechts der
Gegenwart 9: 245–90.
——— . 1922. Die Verfassung Oesterreichs. Jahrbuch des öffentlichen Rechts der Gegen-
wart 11: 232–74.
——— . 1923. Österreichisches Staatsrecht. Ein Grundriß, entwicklungsgeschichtlich
dargestellt. Tübingen: Mohr.
——— . 1925. Allgemeine Staatslehre. Berlin: Springer.
——— . 1929. Wesen und Entwicklung der Staatsgerichtsbarkeit. Veröffentlichungen
der Vereinigung der Deutschen Staatsrechtslehrer 5: 30–88.
——— . 1931a. Wer soll der Hüter der Verfassung sein? Die Justiz 6: 576–628.
——— . 1931b. Wer soll der Hüter der Verfassung sein? Berlin: Rothschild.
——— . 1942. Judicial Review of Legislation. A Comparative Study of the Austrian
and the American Constitution. The Journal of Politics 4: 183–200.
——— . 1945. General Theory of Law and State. Cambridge, MA: Harvard University
Press.
——— . 1960. Reine Rechtslehre. 2nd ed. Vienna: Deuticke.
——— . 1968a. Wesen und Entwicklung der Staatsgerichtsbarkeit. In Die Wiener
rechtstheoretische Schule. Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl
und Alfred Verdross. Ed. Hans Klecatsky, René Marcic and Herbert Schambeck, Vol.
2, 1813–71. Vienna: Europa.
——— . 1968b. Wer soll der Hüter der Verfassung sein? In Die Wiener rechtstheoreti-
sche Schule. Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl und Alfred Ver-
dross. Ed. Hans Klecatsky, René Marcic and Herbert Schambeck, Vol. 2, 1873–922.
Vienna: Europa.
——— . 1974. Wiedergabe einer Sendung des Österreichischen Rundfunks. In Hans
Kelsen zum Gedenken. Ed. Walter Antoniolli et al., 47–74. Vienna: Europa.
Kelsen, Hans, Georg Froehlich, and Adolf [Julius] Merkl. 1922. Die Bundesverfassung
vom 1. Oktober 1920. Vienna: Deuticke.
McCloskey, Robert G. 2000. The American Supreme Court. 3rd ed. Chicago, IL: Uni-
versity of Chicago Press.
Moreso, José Juan, and Pablo E. Navarro. 1998. The Reception of Norms, and
Open Legal Systems. In Normativity and Norms. Critical Perspectives on Kelsenian
Themes. Ed. Stanley L. Paulson and Bonnie Litschewski Paulson, 273–91. Oxford:
Clarendon.

© Blackwell Publishing Ltd 2003.

 Constitutional Review 239

Nelson, William E. 2000. Marbury v. Madison. The Origins and Legacy of Judicial
Review. Lawrence, KS: University Press of Kansas.
Newmyer, R. Kent. 2001. John Marshall and the Heroic Age of the Supreme Court. Baton
Rouge, LA: Louisiana State University Press.
Öhlinger, Theo. 1976. Der Bundesstaat zwischen Reiner Rechtslehre und Verfassungsreal-
ität. Vienna: Braumüller.
——— . 2002. Die Entstehung und Entfaltung des österreichischen Modells der
Verfassungsgerichtsbarkeit. In Der Rechtsstaat vor neuen Herausforderungen.
Festschrift für Ludwig Adamovich zum 70. Geburtstag. Ed. Bernd-Ch. Funk et al.,
581–600. Vienna: Verlag Österreich.
Reiter, Ilse, ed. 1997. Texte zur österreichischen Verfassungsentwicklung 1848–1955.
Vienna: WUV Universitätsverlag.
Rumpler, Helmut, and Peter Urbanitsch, eds. 2000. Die Habsburgermonarchie
1848–1918. Vol. 7: Verfassung und Parlamentarismus. Vienna: Verlag der
österreichischen Akademie der Wissenschaften.
Schefbeck, Günther. 1995. Verfassungsentwicklung 1918–1920. In 75 Jahre Bundesver-
fassung. Festschrift aus Anlaß des 75. Jahrestages der Beschlußfassung über das Bundes-
Verfassungsgesetz. Ed. Österreichische Parlamentarische Gesellschaft, 53–107.
Vienna: Österreichische Staatsdruckerei.
Schmitz, Georg. 1981. Die Vorentwürfe Hans Kelsens für die österreichische Bundesver-
fassung. Vienna: Manz.
Stolleis, Michael. 1999. Geschichte des öffentlichen Rechts in Deutschland. Vol. 3:
1914–1945. Munich: Beck.
Stourzh, Gerald. 2000. Der Dualismus 1867 bis 1918: Zur staatsrechtlichen und völk-
errechtlichen Problematik der Doppelmonarchie. In Die Habsburgermonarchie
1848–1918. Vol. 7: Verfassung und Parlamentarismus. Ed. Helmut Rumpler and
Peter Urbanitsch, 1177–230. Vienna: Verlag der österreichischen Akademie der
Wissenschaften.
Weyr, Franz. 1922. Der Tschechoslowakische Staat. Jahrbuch des öffentlichen Rechts der
Gegenwart 11: 351–75.

© Blackwell Publishing Ltd 2003.