Compare And Contrast Judicial Review Vs American Judicial Model

Nowadays, the most diffused constitutional models of judicial review are the American and the European. Both these Constitutional models should be the manifestos of democracy and sovereignty of the people, but it is easily to deny this statement. In fact, we have to take into account that constitutions can be also negative for the consolidation of democracy. For instance, in many cases the authoritarian regimes use the constitution as support for them. Although, a democratic system would be against a certain type of judicial independence since democracies promote a popular participation, judicial review represents a fundamental organ for the protection of human rights and civil liberties. The aim of this essay is to compare the American and
the European constitutional models of judicial review and analyse which one could suit more the democratic principles.
Over the past fifty years, there was a significant progress in global politics, seeing the affirmation of “type 3 constitution”. Type 3 constitution is a kind of constitution characterized on the exercise of public authority and the addition of constitutional justice to protect the constitutional rights. In consequence, they introduced the concept of judicial review. This concept represents the principle by which courts can declare acts of either the executive branch or the legislative branch unconstitutional. However, there are different type of constitutional models of judicial review. But as said before, the American, mostly diffused in the Americas, and the European, mostly diffused in Europe and South Africa are the most used.
The aim of these two models is to enforce the existing branch of laws and protect the constitutional rights but between them, there are several differences.
Starting from the institutional structure, the American system is decentralized since all the ordinary courts can declare an act unconstitutional. On the other hand, the European system is centralized because only a single Court, usually called “Constitutional Court”, can exercise judicial review. Although the American System could create a confusion of powers. On the contrary, in terms of democracy, we might think that the American model giving a division of powers could be more democratic. However, some implications suggest different conclusions. For instance, some theorists argue that the American system is not democratic since the members of the courts are not
elected.
In addition, another possible issues against democratic principles could be a possible influence from others political actors. In fact, elected politicians could influence a court in various ways, for instance they can appoint justices to their liking, pass legislation that overrides Courts rulings or even amend the constitution. However, politicians are only able to stipulate those influences if only they are sufficiently coherent as a group to amass the legislative votes needed in each case. For this reason, we can state that political fragmentation is positive for the independence of the Courts. For example, if we analyse previous behaviour of the Courts we will notice that courts are less active when they have to face an unified opposition from other institutions ( such as the House, Senate and President). In this case, the uniformity and centrality of the European Constitutional Court create a discrete point of straight.
Even more, the two systems differentiate also in their member composition. In fact, the members of the Constitutional Court in Europe are required to have some legal experience as judge, law professor or government attorney for twelve years. In contrast, this requirement is not asked for the candidates of the American Courts. In this ambit, democracies usually support other forms of independence by granting judges lifetime or long tenure, by protecting their salaries, and by making it procedurally difficult to change the composition of the courts.
Another difference is set into timing; in the American model, courts can only exercise judicial review after an act has occurred or taken effect. Conversely, many Constitutional Courts have the power to review a treaty or a governmental act before it is emitted, some can exercise their power both before and after an act emanation. Therefore, the American system uses a concrete method as the courts can only resolve concrete cases or controversies. In contrast, in the European system courts might exercise review in absence or in presence of a concrete case or controversy. In this case, the European system appears as more efficient as there is lower risk that an unconstitutional act is applied.
Moreover, the American Supreme Court implies the verification not only of constitutional issues but also legislative. For example, this is the case of the USA where the Supreme Court is both an appellate court and a constitutional review body. The European constitutional court instead is limited to just constitutional disputes, in fact there are other courts created just to solve criminal and civil problems. Again, the European system seems preferable as the constitutional court reflect principles of independence from ordinary legislation and it involves a more accurate focus on the constitutional acts.
Judge which of the two model represent better democracy is a hard task, some theorists argue even that both the two systems can have undemocratic implications.
In fact, one argument say that, in a large number of the cases where the Courts judge an act unconstitutional, some minority was defended against the majority. On the other hand, the term democracy involve the predomination of the majorities and their representatives not the minorities. Nevertheless, another argument state that both the courts are created to protect fundamental rights such as the human and civil rights. In fact, we can noticed that many States had seen the affirmation of judicial review after authoritarian regimes. See, for example countries like Italy and Germany where the Constitutional Courts were introduced primary to fight Nazism and
Fascism.
In conclusion, analysing which of these two models could be better for democracy; we cannot avoid mentioning that democratic theory in Europe is also the result of the Rousseauian notion of the “sovereign assembly”, where the citizens of the State decide together the general will. In contrast, a German jurist called Carl Schmitt, argues that the American judicial review is linked to civil cases causing the “judicialization of politics” and the “politicization of judiciary”. For these two main statements, I will argue that the European model best reflect the democratic principles. Therefore, in my view, what is fundamental in the democracy consolidation is the preservation of fundamental rights and by the arguments covered in this essay, the European model appears the most suitable for this scope.