Constitutional Review- Two Distinct Approaches

Constitutional Review- Two Distinct Approaches

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Word Count (including footnotes): 2,517
British English

Constitutional Review- Two Distinct Approaches

“Thirty Years of Roe v. Wade: Death, Deceit, Depression” wrote the editor of the Leadership University newsletter on August 13th 2006[1]. Indeed, the Supreme Court decision that went on to legalize abortion in all fifty U.S. states is still controversial thirty-four years later. In the Netherlands, a different kind of tension can be felt regarding the constitutional review of legislation. In fact, there have been proposals to extend or abolish the limits set out by Article 120 of the Constitution, which forbids this kind of review. Therefore, it is in this paper that the main differences between the stances taken by these two countries regarding the constitutional review of legislation will be further elaborated on. This will be done by firstly looking into some background information regarding the relevant courts, such as their history and powers today. Following this, the controversy surrounding the relevant courts in the past few decades will be outlined, in order to reach a coherent conclusion regarding this important issue.

Historical Background

In the United States, it was the leading case of Marbury v Madison which gave way to constitutional review of legislation. In it, Justice Marshall had ruled the Judiciary Act 1789 to be conflicting with the Constitution, which then led to the question of what happens when the Constitution clashes with an Act of Congress. He answered by saying that those Acts of Congress would not be law anymore if they clashed with it, and that the courts are therefore bound to follow the Constitution[2]. Therefore, the fact that Article III of the Constitution granted to the Supreme Court the “judicial power of the United States” was then interpreted as meaning that the Supreme Court could carry out judicial review[3].

As to the Netherlands, a provision was included in the country’s Constitution in 1848 stating that “statutes are inviolable”[4]. As was clarified in the Van den Bergh case of January 27th 1961, the Constitution makes it clear that it is appropriate for the legislature (and not for the courts) to judge the question of which provisions in the Constitution “must be taken into account in bringing about Acts of Parliament” and how these provisions should be interpreted and applied4. However, in 1983 the original 1848 clause was rephrased into Article 120 of the Constitution. It no longer stipulated the “inviolability” of Acts of Parliament, but stated that courts were now not able to review their “constitutionality”[5].

The Courts Today

Today, important cases regarding the interpretation of the Constitution will almost always be referred to the Supreme Court of the United States. Before this takes place, the state or appeal court will examine the compatibility of the parties’ arguments with statutes in the federal Constitution. If these are found to be unconstitutional (or incompatible), they will be referred to the Supreme Court which will then carry out constitutional interpretation. The Court is able to decide which cases it wants to review. This means that the method of certiorari (or writ of certiorari) is used[6]. Certiorari is an order from a higher court instructing the lower court to “send the record of a case for review”. It has been reported that of the 6,000 certiorari petitions filed each year, the Supreme Court agrees to hear no more than 150 cases or even fewer[7]. The judgments or interpretations of Constitutional law by the Supreme Court will then be binding on the legislative and executive, as well as the state courts and the lower courts in the federal system of the United States7.

The courts in the Netherlands review cases in order to check whether the Dutch law has been applied correctly. Even though they cannot rule whether an Act of Parliament is constitutional or not, they can review the compatibility of any national law with the treaty provisions and the decisions of international organizations9. This is specified in Articles 93 and 94 of the Constitution, and has since given judges in the Dutch courts a “limited form of judicial review”[8]. Furthermore, even if they cannot review Acts of Parliament, other legislation (such as royal decrees and municipal bye-laws) may be reviewed with conformity to their constitutionality[9]. Therefore, Acts of Parliament must be considered as conforming to the Constitution. The thought of letting the courts supervise for constitutionality is seen as dangerous, since it might entice them into politics. It is also generally believed that the voters would be likely to sanction any “unconstitutional behavior” at the next general elections8.

Controversy through the Decades

In the United States, since the abolition of slavery and the inclusion of clauses in the Constitution regarding fundamental rights, the Supreme Court has been the subject of much controversy. The Court began to gradually develop its principle of equality since 1954, when in the case of Brown v. Board of Education it ruled the denial to take in black students by public schools to be unconstitutional[10]. Many Americans found it hard to believe this judgment, but the federal government resisted unpopularity and went on to secure the placing of black pupils in public schools[11]. This principle was further established in all other pubic facilities and resulted in a mass movement for civil rights by black people6. Furthermore, it also led to other legislation being enacted, such as the as the Civil Rights Act 1964. Another consequence was the springing up of civil rights case law.

The court then switched to a more activist stand in the 1960s and 1970s. However, Justice Frankfurter- one of the most influential Justices of the Supreme Court- went on to strongly protest against the involvement of the judiciary in the “politics of the people”, since this would be “hostile to a democratic system”. He therefore concluded that Courts should not enter this political thicket. What he was referring to was later termed the ‘political question’[12]. Ironically, the Court entangled itself in what Justice Frankfurter had described when it tried to deal with reapportionment cases, or had attempted to change the way voting districts were delineated throughout the United States. This started out with the Baker v Carr (1962) case, when the Court had concluded that the issue of reapportionment was “justiciable”. Later, the Court in Reynolds v Sims (1964) formulated a “one-man, one-vote” standard for reapportionment cases. However, this standard did not prove to be helpful in reapportionment cases at all11.

In 1972, another controversial judgment by the Court followed, when it ruled that the death penalty was a “cruel and unusual punishment” being forbidden under the Eighth Amendment, and that any state statutes carrying death penalty clauses could not be applied6. The latter judgment led to outcry by much of the American population, who was in favor of it. However, the Court overturned the judgment a short time later11. Nevertheless, the Supreme Court continued to stir outrage with some of its later judgments, but did not overturn a few of them. One example is the Roe v Wade case, when the Supreme Court ruled in 1973 that statutes which prohibited abortion (during the first three months) were unconstitutional. This decision had been based on the due-process clause of the Fourteenth Amendment, since according to previous case law, due process included the protection of privacy[13]. However, the ruling angered many religious groups, who accused the Court of practicing “excessive liberalism”. Furthermore, lawyers attacked the judges for allegedly imposing their “own moral views on society without a clear basis in the Constitution”11.

By the 1980s, another kind of controversy arose: the Supreme Court’s uncertainty regarding programs of ‘affirmative action’. The Court had first established that the use of the quota system in public schools and in the hiring of employees constituted a violation of the equal protection clause of the Constitution. However, in a later judgment Justice Scalia had expressed the view that “unequal treatment in law is an appropriate remedy for unequal treatment in society”. Therefore, the Court’s indecisiveness proved that the task of tracing the boundary between unacceptable and acceptable programs of ‘affirmative action’ was impossible. As a consequence, it started to be heavily criticized for not keeping with “the importance of the problem in society”. Today, after some changes made to the Supreme Court by the Reagan administration in the 1980’s, it is said to have toned down its activist character. Furthermore, the Court prefers to limit the scope of cases to which it is submitted, as well as to rather focus on the facts of each case11. Therefore, it has been “less inclined to generalize” and according to Justice Ginsburg it is taking a “more cautious approach”[14].

As to the Netherlands, the controversy rather lies in the limits imposed by Article 120 on the courts. In addition to this, according to a Dutch constitutional lawyer, the trust people have had in the wisdom of representative bodies has been slowly eroding. The State is increasingly seen as a danger to individual liberties and, as a consequence, Dutch citizens have become more litigious by challenging government measures before the courts. Proof of this phenomenon is the 1957 Van den Bergh case, when an Amsterdam-based professor of constitutional law (and once member of the Lower House) questioned the wording of this clause regarding the ‘inviolability’ of statutes. In fact, he claimed that the “Act of 31 January 1957” which had been passed by Parliament and subsequently decreased his pension rights, was not valid. The grounds by which he contested the validity of this Act had been that the bill was not passed by a required majority of the Lower House, since no vote had been asked to be taken by any Member of Parliament. Subsequently, this bill had been passed “without a vote”22. Furthermore, Van den Bergh expressed his doubts regarding the presence of two thirds of all PM’s when the bill was passed. Therefore he held that what had been published in the Official Journal for the Kingdom of the Netherlands was not really an Act and that the State owed him more pension money. The Court, however, denied all this. It first highlighted the fact that the validity of Acts of Parliament should not be subjected to doubt or in conflict with the Constitution as long as the legislation does not intervene. Furthermore, it made clear (apart from what was said in the introduction), that it should not be contested whether an act is constitutional and the way in which it was enacted was constitutional, since the legislature bears this in mind during the legislative process8.

The 1983 Harmonization Act case is another important example. In this case, the Court had judged that the fundamental principles of legitimate expectations and legal certainty had been breached by this Harmonization Act. The Act was reportedly adopted in “haste” by the two chambers of Parliament, in order to meet a financial deadline. It had provided a ‘study financing system’ but it was discovered later that this statute limited some students’ rights, since those students who were already enrolled in some courses (and expected the system to apply to them) were retroactively deprived of these benefits[15]. However, the act could not be declared inapplicable due to the restrictions imposed by Article 120 of the Constitution on the courts. As a consequence, this case led to a debate regarding the desirability for the courts to be able to review Parliament Acts for conformity to fundamental principles of law4.

By the eighties, another issue arose regarding the interpretation of human rights provisions by the courts. The fact that the Dutch courts could not rely on the Constitution, but could rely on the European Convention when statutes were not compatible with human rights standards seemed increasingly strange. For instance, courts could set aside legislation for having violated the principle of equality, since it clashes with Article 14 of the European Convention on Human Rights. However, they could not set aside legislation on the basis that it conflicts with the non-discrimination rule in Article 1 of the Dutch Constitution[16]. Today, the courts’ interpretation of national legislation in light of international treaties is done without looking at the way in which the government and Parliament dealt with a case. Instead, the courts look towards sources such as judgments of the European Court of Human Rights when in need of inspiration. Nevertheless, an increasing amount of people have been expressing their wish to install complete judicial review in the country. Meanwhile, a proposal was introduced in Parliament regarding the ability of courts to review Acts of Parliament in accordance with “classic fundamental rights provisions in the Constitution”8. Today this proposal has been accepted by the second chamber and it is now before the first chamber of the Dutch Parliament. However, a second round must follow before the proposal can come into force[17].

It can be confirmed, following this discussion on constitutional review by the courts in the United States and the Netherlands, that different kinds of tensions have been felt regarding this important issue in both countries. This is due to the different approaches taken by each country regarding constitutional review. It can be said that the two lie at opposing sides, since the United States is uncertain about the amount of judicial freedom given to its Supreme Court, while the Netherlands is wishing to give its courts more judicial freedom by altering Article 120 of the Constitution.

Bibliography-

Barlowe, Byron. 30 Years of Roe v. Wade: Death, Deceit, Depression. LeadershipU. (13 August 2006). [26 April 2007].

Besselink, Leonard F.M. Constitutional Law of the Netherlands. (2004). (Ars Aequi Libri: Nijmegen). [24 April 2007].

Cozzens, Lisa. Brown v. Board of Education. African American History. (25 May 1998).[26 April 2007].

Dr. Matthijs de Blois. Lecture General Theory of Law at University College Utrecht. (1 May 2007).

Encarta. Supreme Court of the United States. Microsoft Encarta Online Encyclopedia. (2007). [25 April 2007].

FindLaw. Judicial Review. Constitutional Law Center: U.S. Constitution. (2007). [26 April 2007].

History Encyclopedia. Supreme Court of the United States. The History Channel website. (2007). [26 April 2007].

Koopmans, Tim. Courts and Political Institutions- A Comparative View. (2005). (Cambridge University Press: Cambridge). [24 April 2007].

Koopmans, Tim. The Legitimacy of the Constitutional Judge and the Theory of Interpretation. Cited by Besselink in Constitutional Law of the Netherlands. [27 April 2007].

Ministry of Justice of the Kingdom of the Netherlands. Netherlands. Legislationline. (2003). [25 April 2007].

Rosenfeld, Michel. Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court. International Journal of Constitutional Law- 4(4):618-651. (2006). [27 April 2007].

Rush, Mark E. Gerrymandering: Out of the Political Thicket and Into the Quagmire. Election Systems and Representative Democracy- Political Science and Politics, Vol. 27, No. 4. (December 1994). [27 April 2007].

ThisNation. Roe v. Wade: Dissent, Rehnquist. American Government and Politics. (2007). [27 April 2007].

Van Empel, Martijn & de Jong, Marianne. Constitution, International Treaties, Contracts and Torts. (University of Amsterdam). [26 April 2007].

Van Houten, M.L.P. Keeping an eye on legislation: Judicial review of acts of parliament for their conformity with the Constitution and fundamental principles of law (title translated from Dutch). pp. 345-348. (1997). (Diss. Katholieke Universiteit Brabant). [24 April 2007].

Widdershoven, Rob & Ten Berge, Gio. The Principle of Legitimate Expectations in Dutch Constitutional and Administrative Law. (University of Utrecht). [26 April 2007].

Wikipedia. Ruth Bader Ginsburg. Wikipedia, The Free Encyclopedia. (2007). [25 April 2007].

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[1] Byron Barlowe. 30 Years of Roe v. Wade: Death, Deceit, Depression. LeadershipU. .
[2] Michel Rosenfeld. Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court. International Journal of Constitutional Law- 4(4):618-651. .
[3] FindLaw. Judicial Review. Constitutional Law Center: U.S. Constitution. .
[4] M.L.P van Houten. Keeping an eye on legislation: Judicial review of acts of parliament for their conformity with the Constitution and fundamental principles of law (title translated from Dutch). pp. 345-348. (Diss. Katholieke Universiteit Brabant).
[5] Ministry of Justice of the Kingdom of the Netherlands. Netherlands. Legislationline. .
[6]History Encyclopedia. Supreme Court of the United States. The History Channel website. .
[7] Encarta. Supreme Court of the United States. Microsoft Encarta Online Encyclopedia.
.
[8] Leonard F.M Besselink. Constitutional Law of the Netherlands. (Ars Aequi Libri: Nijmegen).
[9] Martijn van Empel & Marianne de Jong. Constitution, International Treaties, Contracts and Torts. (University of Amsterdam).
[10] Lisa Cozzens. Brown v. Board of Education. African American History. .
[11] Tim Koopmans. Courts and Political Institutions- A Comparative View. (Cambridge University Press: Cambridge).
[12] Mark E Rush. Gerrymandering: Out of the Political Thicket and Into the Quagmire. Election Systems and Representative Democracy- Political Science and Politics, Vol. 27, No. 4. .
[13] ThisNation. Roe v. Wade: Dissent, Rehnquist. American Government and Politics. .
[14] Wikipedia. Ruth Bader Ginsburg. Wikipedia, The Free Encyclopedia. .
[15] Rob Widdershoven & GioTen Berge. The Principle of Legitimate Expectations in Dutch Constitutional and Administrative Law. (University of Utrecht).
[16] Tim Koopmans. The Legitimacy of the Constitutional Judge and the Theory of Interpretation. Cited by Besselink in Constitutional Law of the Netherlands.
[17] Dr. Matthijs de Blois. Lecture General Theory of Law at University College Utrecht. (1 May 2007).

Bibliography: Barlowe, Byron. 30 Years of Roe v. Wade: Death, Deceit, Depression. LeadershipU. (13 August 2006). [26 April 2007]. Besselink, Leonard F.M. Constitutional Law of the Netherlands. (2004). (Ars Aequi Libri: Nijmegen). [24 April 2007]. Cozzens, Lisa. Brown v. Board of Education. African American History. (25 May 1998).[26 April 2007]. Dr. Matthijs de Blois. Lecture General Theory of Law at University College Utrecht. (1 May 2007). Encarta. Supreme Court of the United States. Microsoft Encarta Online Encyclopedia. (2007). FindLaw. Judicial Review. Constitutional Law Center: U.S. Constitution. (2007). [26 April 2007]. History Encyclopedia. Supreme Court of the United States. The History Channel website. (2007). [26 April 2007]. Koopmans, Tim. Courts and Political Institutions- A Comparative View. (2005). (Cambridge University Press: Cambridge). [24 April 2007]. Ministry of Justice of the Kingdom of the Netherlands. Netherlands. Legislationline. (2003). [25 April 2007]. Rosenfeld, Michel. Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court. International Journal of Constitutional Law- 4(4):618-651. (2006). [27 April 2007]. Rush, Mark E. Gerrymandering: Out of the Political Thicket and Into the Quagmire. Election Systems and Representative Democracy- Political Science and Politics, Vol. 27, No. 4. (December 1994). [27 April 2007]. ThisNation. Roe v. Wade: Dissent, Rehnquist. American Government and Politics. (2007). [27 April 2007]. Wikipedia. Ruth Bader Ginsburg. Wikipedia, The Free Encyclopedia. (2007). [25 April 2007]. [17] Dr. Matthijs de Blois. Lecture General Theory of Law at University College Utrecht. (1 May 2007).