Constitutional Courts

Two Models of Constitutional Adjudication

There are two dominant models for enforcing constitutional supremacy. The American model allows any court to rule on constitutional questions — a district court can declare a federal law unconstitutional, subject to appeal all the way to the Supreme Court. Constitutional questions arise incidentally, in the course of resolving ordinary disputes.

The European model, inspired by Hans Kelsen and adopted after World War II, creates a specialized constitutional court — a separate institution whose sole job is to assess the constitutionality of legislation. Germany's Federal Constitutional Court (Bundesverfassungsgericht), established in 1951, is the archetype. If an ordinary German court encounters a constitutional question, it must refer it to the Constitutional Court rather than deciding it independently.

Judicial Selection and Democratic Legitimacy

How constitutional judges are selected is one of the most consequential design choices. US Supreme Court justices are nominated by the President and confirmed by the Senate — a process that has become intensely politicized. German Constitutional Court judges are elected by a two-thirds supermajority of the Bundestag and Bundesrat, requiring cross-party consensus. South Africa's Judicial Service Commission, which includes judges, lawyers, academics, and politicians, recommends nominees to the President.

Term limits and mandatory retirement ages also shape court behavior. German Constitutional Court judges serve a single 12-year term — long enough to develop expertise but short enough to ensure turnover. US justices serve for life, which means a single appointment can shape constitutional law for 30+ years. France's Constitutional Council members serve nine-year non-renewable terms. Each design choice reflects a different balance between judicial independence and democratic accountability.

Two Models of Judicial Review

The institutional choice shapes how constitutional questions reach the bench and who is empowered to answer them. The Kelsenian model concentrates that authority in one expert body; the American model diffuses it across the whole judiciary.