Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court

International Journal of Constitutional Law

Volumn 4, Issue 4, 2006, Pages 618-651

  Rosenfeld, Michel ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 33749992084     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol027     Document Type: Review

References (150)

1. See The European Court Of Justice 6 (Gráinne de Búrca & J.H.H. Weiler eds., Oxford Univ. Press 2002).
2. See U.S. Const., art. III.
3. In the area of constitutional review, however, the vast majority of ECJ cases are ones of first instance, whereas the overwhelming majority of Supreme Court constitutional cases are appellate ones.
4. For example, unlike the ECJ, Germany has a system of specialized federal courts, including the Constitutional Court, the Labor Court, and the Administrative Court, as does France, with its Cour de Cassation, Conseil d'État, and Conseil Constitutionnel.
5. Unlike the German Basic Law, art. 93, or the French 1958 Constitution, art. 62, the U.S. Constitution does not designate the Supreme Court as the authoritative interpreter of the Constitution. See Michel Rosenfeld, Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts, 2 Int'l. J. Const. L. (I·CON) 633, 637 (2004).
6. This is true in a literal sense in that the proposed European constitution approved by the European Union's member states has not been ratified and is unlikely to be after the negative results in the French and Dutch 2005 referenda. In addition, this may also be true even if some future European constitution were fully ratified and implemented, as it is unclear that a transnational constitution for an unprecedented supranational sociopolitical entity could actually function as constitutions have within the ambit of democratic nation-states.
7. See supra note 5.
8. Id.
9. U.S. 137 (1803).
10. See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958).
11. See, e.g., Edwin Meese, Perspective on the Authoritativeness of Supreme Court Decision: The Law of the Constitution, 61 Tulane L. Rev. 979 (1987) (Meese, who was then-president Ronald Reagan's attorney general, claimed that, as coequal branches of the federal government, the Congress and the executive branch were as qualified as the Supreme Court to render authoritative interpretations of the U.S. Constitution).
12. See Treaty establishing the European Community as Amended by the Treaty of Nice (TEEC), art. 220, Feb. 26, 2001, O.J. C 80.
13. See Michel Rosenfeld, The European Treaty-Constitution and Constitutional Identity: A View from America, 3 Int'l J. Const. L. (I·CON) 316, 319 (2005).
14. Judicial interpretation and implementation of treaties may, of course, raise domestic constitutional issues, but these remain separable from treaty interpretation itself. See, e.g., Missouri v. Holland, 252 U.S. 416 (1920) (state of Missouri's objection to federal interpretation of migratory-bird treaty with the U.K. on U.S. federalism grounds rejected as unwarranted under the U.S. Constitution).
15. See, e.g., Thlimmenos v. Greece, 31 E.H.R.R. 15 (2001) (ECtHR) (Greek state action against own citizen declared invalid under ECHR art. 9 regarding freedom of religion and art. 14 concerning nondiscrimination).
16. Case 26/62, N. V. Algemene Transport - en Expeditie Onderneming van Gend en Loos v. Nederlandse administratie der belastingen [Netherlands Inland Revenue Administration] [1963] E.C.R. 1.
17. See Case 6/90, Francovich v. Italy and Case 9/90, Bonifaci v. Italy, [1991] E.C.R. I-5337 (Italy liable to its citizen for failure of implementation of requirements imposed by an EU directive).
18. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
19. See Treaty, supra note 12, arts. 230 and 234.
20. See Case 70/88, European Parliament v. Council of the European Communities, [1990] E.C.R. I-2041, para. 27.
21. This is not to say that the EU is configured as a federal system. It is in fact sui generis and has both federal and confederal aspects. Be that as it may, the EU does possess judicially reviewable division-of-powers norms comparable to those prevalent in federal nation-state constitutions.
22. See Michel Rosenfeld, Modern Constitutionalism as Interplay Between Identity and Diversity, in Constitutionalism, Identity, Difference And Legitimacy: Theoretical Perspectives 4-5 (Michel Rosenfeld ed., Duke Univ. Press 1994).
23. The EU Charter of Fundamental Rights proclaimed by the European Council in 2000 in Nice does not have binding effect, though the proposed European treaty-constitution would give it the force of law by incorporating it as its part II.
24. Case 294/83, Parti Écologiste "Les Verts" v. European Parliament [1986] E.C.R. 1339 para. 23.
25. Case 4/73, J. Nold Kohlen- und Baustoffgrosshandlung v. Commission of the European Communities, [1974] E.C.R. 491, para. 13.
26. Case 309/96, Daniele Annibaldi v. Sindaco del Comune di Guidonia and Presidente Regione Lazio [1997] E.C.R. I-7473, para. 12.
27. The Bill of Rights comprises the first ten amendments to the U.S. Constitution, which were adopted in 1791.
28. See Griswold v. Connecticut, 381 U.S. 479 (1965).
29. See Roe v. Wade, 410 U.S. 113 (1973).
30. See Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 Am. Pol. Sci. Rev. 853, 861-862 (1962).
31. This conclusion is buttressed by consideration of the countermajoritarian problem raised in the context of the Supreme Court's constitutional jurisprudence, which is discussed below. See infra p. 631.
32. See C.A. 6821/93 United Mizrahi Bank Ltd. v. Migdal Village 49(4) PD 221 (1995) (Supreme Court of Israel). An edited version in English translation is found in Norman Dorsen, et al., Comparative Constitutionalism: Cases And Materials 103-110 (West 2003).
33. These rights had been embodied in parliamentary "basic laws" prior to the Court's Midgal decision but their constitutionalization and susceptibility to judicial elaboration remained open to debate.
34. For skeptical views concerning the existence of a sufficient European constitutional identity, see Armin von Bogdandy, The European constitution and European identity: Text And subtext of the Treaty establishing a Constitution for Europe, 3 Int'l J. Const. L. (I·CON) 295 (2005) and Rosenfeld, The European Treaty-Constitution, supra note 13.
35. Technically, every time the ECJ is called upon to interpret the relevant European treaties that are constitutive of the Union it engages in constitutional review. See J.H.H. Weiler, Epilogue: The Après Nice, in The European Court Of Justice, supra note 1, at 220 n. 167. For present purposes, however, only cases that are functionally constitutional - i.e., that deal with division of powers, rule of law, or fundamental-rights issues - will be deemed to involve constitutional review.
36. Indeed, horizontal separation-of-powers cases are usually initiated before the ECJ. See, e.g., European Parliament v. Council Of European Communities, supra note 20. Similarly, most vertical division-of-powers cases come directly to the ECJ through the preliminary reference under art. 234 of the TEEC, supra note 12, which requires national courts to refer challenges to the validity of Community law or measures to the ECJ. As a matter of fact, these preliminary references constitute well over half the cases brought before the ECJ. See Harm Schepel & Erhard Blankenburg, Mobilizing The European Court of Justice, in The European Court Of Justice, supra note 1, at 30.
37. See Martin v. Hunter's Lesee, 14 U.S. 304 (1816) (Supreme Court of Virginia accepted being bound by the U.S. Constitution but refused to accept Supreme Court's interpretation of it as superior to its own).
38. See Kathleen Sullivan & Gerald Gunter, Constitutional Law 680 (15th ed., Foundation Press 2004).
39. 347 U.S. 483 (1954).
40. See Topics of the Times: The Road from Racism, N.Y. Times, Oct. 21, 1988, at A34.
41. See Schepel & Blankenburg, supra note 36, at 30.
42. Id. at 32.
43. Id. at 30.
44. From the standpoint of the Supreme Court, it is remarkable that as divided, divisive, controversial, and important a decision as Bush v. Gore, 531 U.S. 98 (2000), was, it was followed nonetheless without question even if thoroughly criticized.
45. See Statistics Concerning the Judicial Activity of the Court of Justice 3 (2004), available at www.curia.eu.int/en/instit/presentationfr/rapport/ stat/st05cr.pdf.
46. See The Justices' Caseload, available at www.supremecourtus.gov/about/ Justicecaseload.pdf.
47. I am leaving aside, for present purposes, the Supreme Court's power to repudiate its own precedents, which means that, strictly speaking, none of its decisions is definitive. Nevertheless, when considering a novel constitutional issue prospectively, the Supreme Court is not focused on overruling precedent but, rather, on forging a workable, fair, and acceptable precedent.
48. This is what happened to the Supreme Court in the immediate aftermath of its Bush v. Gore decision, supra note 43. Justice Kennedy, one of the five Justices who, in effect, decided the 2000 U.S. presidential election defended the Court's decision by emphasizing that they had not sought the same, which came to them by way of appeal from lower courts, and that to have refused the appeal would probably have led to greater unrest and political instability.
49. See David Kaplan, The Accidental President, Newsweek, Sept. 17, 2001, at 28.
50. See Rosenfeld, Constitutional Adjudication, supra note 5, at 635-636.
51. A dramatic example of this is provided by the reversal of the Supreme Court in less than a decade of a constitutional jurisprudence based on a distinction between federated states as employers acting as sovereigns or as other private or public employers. The distinction based on whether the employment related to a function historically performed by states rather than nonstate actors was made constitutionally relevant in National League of Cities v. Usery, 426 U.S. 833 (1976)
52. and abandoned as unworkable in practice after a series of judicial applications over a nine year period in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
53. See supra text accompanying note 41.
54. See Schepel & Blankenburg, supra note 36, at 32 (discussing various theories seeking to account for success of the ECJ with the judiciary of member states).
55. See infra p. 630.
56. See Rosenfeld, Constitutional Adjudication, supra note 5, at 655.
57. See id. at 663.
58. What remains subject to dispute is the scope of powers delegated to the federal government, such as the power to regulate interstate commerce. See, e.g., U.S. v. Lopez, 514 U.S. 549 (1995) (a 5-4 decision on whether federal government can regulate gun possession in state schools). The supremacy of valid federal regulations, however, remains unquestioned.
59. See supra note 11.
60. See Meese, supra note 11.
61. See Rosenfeld, Constitutional Adjudication, supra note 5, at 652.
62. Id.
63. See id. at 653.
64. For example, the First Amendment protects freedom of speech and freedom of religion, and in a democracy it is unpopular minority views and religions that are most likely to be hindered or suppressed by popular demand.
65. See Robert Bork, The Tempting Of America: The Political Seduction Of Law 146-147 (Free Press 1990).
66. See J.H.H. Weiler, Does Europe Need a Constitution?: Demos, Telos and the German Maastricht Decision, 1 EUR. L.J. 219, 232-235 (1995).
67. In the U.S., tensions between the three branches of the federal government are, at least in part, seamlessly woven into the country's politics. For example, criticism or praise of the Supreme Court may be linked to abortion politics or to degrees of support or opposition to the president's politics. In contrast, in the political arena in which the EU operates, it is often the political role of the EU itself that is in question rather than, say, a substantive policy adopted by the Commission that divides the member states' citizenry into distinct groups that are more or less supportive Of The Commission.
68. See Rosenfeld, Constitutional Adjudication, supra note 5 at 645-646.
69. See id. at 648.
70. See Bork, supra note 62. Periodically, some legal scholars have advocated greatly reducing or abolishing judicial review of constitutional issues.
71. See, e.g., Mark Tushnet, Taking The Constitution Away From The Courts (Princeton Univ. Press 1999), but thus far such proposals have had little, if any, impact beyond academia.
72. See supra text accompanying note 41.
73. See supra text accompanying note 55.
74. See Ralph H. Folsom, Principles Of European Union Law 59 (West 2005).
75. Case 6/64, Costa v. Enel [1964] E.C.R. 585.
76. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (Supreme Court holds amendment to Colorado Constitution ratified by referendum unenforceable as violative of Equal Protection Clause of U.S. Constitution).
77. 37 BVerfGE 271 (1974), para. 24.
78. Corte cost., Frontini v. Ministero delle Finanze Giurisprudenza Constituzionale, [1974] C.M.L.R. 372, para 21.
79. See supra text accompanying note 34.
80. See, e.g., Frontini, supra note 74
81. Brunner v. European Union Treaty, 89 BVerfGE 155 (1993) (German Constitutional Court). A further means to avoid conflict is - wherever possible and relevant - for the member state to amend its constitution. Thus, after its Conseil Constitutionnel declared provisions of the Amsterdam Treaty unconstitutional (see Treaty Of Amsterdam Decision, Cons. const., Dec. 31, 1997, D.C. 1997, 394.), France amended its constitution in 1999 to eliminate the conflict.
82. See Dorsen Et Al., Comparative Constitutionalism, supra note 32, at 65.
83. See Elaine Sciolino, French No Vote on Constitution Rattles Europe, N.Y. Times, May 31, 2005, at A1
84. Marlise Simons, Dutch Voters Solidly Reject New European Constitution, N.Y. Times, Jun. 2, 2005, at A3.
85. For a thorough and enlightening comparison of the differences between the two courts, see Mitchel De S.-O.-L'E. Lasser, Judical Deliberations: A Comparative Analysis Of Judicial Transparency And Legitimacy (Oxford Univ. Press 2005).
86. See J.H.H. Weiler, Epilogue: The Judicial Après Nice, supra note 35, at 225.
87. See, e.g., U.S. v. Hamdi, 124 S.Ct. 2633 (2004) (constitutionality of indefinite detention without charges of an "enemy combatant" decided with controlling opinion by a plurality of four justices).
88. For example, during the 2000 Presidential debates, then-candidate George W. Bush said: "I don't believe in liberal activist judges... I believe in strict constructionists." Bush went on to say that his opponent Al Gore would appoint judges who would "subvert the legislature." The 2000 Campaign, Transcript of Debate Between Vice President Gore and Governor Bush, N.Y. Times, Oct. 4, 2000, at A30.
89. See Lasser, supra note 78, at 103-115.
90. The Federalist No. 78, at 433 (Alexander Hamilton) (Clinton Rossiter, ed., Mentor 1999).
91. Id.
92. See generally, Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S. Cal. L. Rev. 1307 (2001).
93. In terms of separation of powers, the two other federal branches, though political, are also inevitably concerned with institutional prerogatives. Nevertheless, when a Supreme Court decision has broad democratic appeal, one of the political branches will be hard pressed to disregard it to protect an institutional prerogative. See, e.g., U.S. v. Nixon, 418 U.S. 683 (1974) (In midst of an impeachment investigation, President Richard Nixon was ordered to turn over documentation over which he asserted executive privilege. Though Nixon left it unclear whether he would obey such a Supreme Court order, he announced he would comply eight hours after the decision was issued).
94. See Sullivan & Gunther, Constitutional Law, supra note 38, at 424 n.4.
95. Compare, e.g., the first French case to consider the constitutionality of affirmative action, the Feminine Quotas Case, Cons. const., Nov. 18, 1982, D.C. 1983, 146 (Conseil Constitutionnel) (in which The core analysis is four short paragraphs) to its U.S. counterpart Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) (with numerous separate opinions running over 150 pages long, id. at 265-421).
96. Supra note 9.
97. This motto is in sharp contrast to the weaker motto, "united in diversity" included in the proposed European Constitution. See Rosenfeld, The European Treaty-Constitution, supra note 13, at 327.
98. This did not prevent the institution of discriminatory immigration regulations or religious bigotry at home, but the ideology of openness to immigration and promotion of religious diversity has remained strong. For example, religious diversity, at one time, may have meant all different Protestant denominations but not Catholics and Jews, whereas today the latter two religions seem fully included in the popular conception of acceptable religious diversity.
99. Consistent with this vision, the multiplicity Of recognized interests does not seem reconcilable with French Rousseauean conceptions of the "general will," which imbue the French state with legitimate authority and, so too, the French constitutional judge, through whom the state "speaks."
100. See Lasser, supra note 78, at 62-63. Lasser asserts that the U.S. judiciary has engaged in a "policy oriented discourse, which goes hand in hand with a virulently anti-formalistic rhetoric," while, at the same time, deploying a "formalist application [of legal norms], which often goes hand in hand with an explicating anti-policy rhetoric,..." Id. at 63.
101. Id. at 280.
102. See Bowers v. Hardwick, 478 U.S. 186 (1986).
103. See Lawrence v. Texas, 539 U.S. 558 (2003).
104. See Rosenfeld, The European Treaty-Constitution, supra note 13, at 327-331.
105. Cons. const., Jul. 16, 1971, D.C. 1971, 41.
106. See Dorsen Et Al., Comparative Constitutionalism, supra note 32, at 123.
107. See von Bogdandy, supra note 34.
108. Van Gend en Loos, supra note 16, at I. B. This rhetoric is all the more remarkable since the treaty itself is silent on direct effect and since traditional treaties customarily grant rights and impose obligations on signatory states raTher than on the latter's citizens.
109. See Lasser, supra note 78, at 115-117.
110. Case 91/92, Paola Faccini Dori v. Recreb Srl. [1994] E.C.R. I-3325, para. 47 (opinion of AG Lenz) (emphasis added).
111. Id. at para. 49 (emphasis added).
112. The issue at stake was whether EU directives not followed by the requisite implementing regulation by the member state should have "horizontal" effects - that is, should be directly binding on nongovernmental actors. The prevailing ECJ jurisprudence being questioned by the AG was to the effect that there was no such horizontal effect.
113. See, e.g., id. at para. 56.
114. Id. at para. 57.
115. Id. at para. 58.
116. Id. at para. 53 (emphasis added).
117. See, e.g., Case 446/98 Fazenda Pública v. Câmara Municipal do Porto (2000) E.C.R. I-11145 (opinion of AG Alber) (Austrian and German government views and arguments considered in preliminary reference by a Portuguese court concerning a value-added-tax issue).
118. See LASSER, supra note 78, at 127.
119. 521 U.S. 898 (1997).
120. Id. at 914.
121. Id. at 972 n.1.
122. There are, of course, notorious exceptions, such as the unanimous Brown v. Board of Education, supra note 39, in which the Supreme Court held state-mandated public school racial segregation unconstitutional, and where the chief justice took special steps to ensure unanimity.
123. See Sullivan & Gunther, supra note 38, at 679.
124. Nold v. Commission, supra note 25.
125. See, e.g., Fazenda Pública v. Câmara Municipal do Porto, supra note 109 (61 paragraphs)
126. and Cases 20/00 and 64/00, Booker Aquaculture Ltd. v. The Scottish Ministers [2003] ECR I-7411 (96 paragraphs).
127. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Adjudication, 100 Harv. L. Rev. 1189 (1987).
128. See Lasser, supra note 78, at 208.
129. The AG arguments focus not so much on the purpose of the particular EU legislation before them, but on "meta" purposes, i.e., "the purposes, values, or policies... underlying The EU's legal structure as a whole" (emphasis in original). Moreover, the ECJ has adopted the same metateleological approach. Id. at 231.
130. See Joxerramon Bengoetxa, Neil MacCormick, & Leonor Moral Soriano, Integration and Integrity in the Legal Reasoning of the European Court of Justice, in The European Court Of Justice, supra note 1, at 43, 46.
131. Ronald Dworkin distinguishes between principles and policies and justifies rights (including constitutional rights) in terms of former and social goals in terms of the latter. See Ronald Dworkin, Taking Rights Seriously 90 (Harvard Univ. Press 1977). Both principle-based and policy-based arguments are, ultimately, value arguments, and it is therefore not necessary to maintain the Dworkinian distinction for present purposes.
132. See Rosenfeld, Constitutional Adjudication, supra note 5, at 657-658.
133. Arguments from precedent are not in and of themselves contrary to formalism or to the framers' intent. Actually, if a precedent fully captures the framers' intent, then following that precedent should be consistent with originalism. Instead, what is inconsistent with originalism is to follow a precedent because it is a precedent, and that is precisely what arguments from precedent call for.
134. For an articulation and defense of originalism, see Bork, The Tempting of America, supra note 62.
135. See, e.g., Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. Rev. 469 (1981).
136. See John Hart Ely, Democracy And Distrust: A Theory Of Judicial Review (Harvard Univ. Press 1980).
137. See Dworkin, The Forum of Principle, supra note 124.
138. See Rosenfeld, Constitutional Adjudication in Europe and the United States, supra note 5, at 658-659. The following remarks are based on the more extensive discussion in id.
139. For an interesting historical view that combines an internal and external challenge to originalism, see H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985) (the framers were not originalists; they expected future generations to adapt the Constitution to their needs).
140. Lasser, supra note 78, at 288 (emphasis in original).
141. European Parliament v. Council of the European Communities, supra note 20, at para. 26.
142. Van Gend en Loos, supra note 16, at I. B.
143. Id.
144. See supra text accompanying note 114.
145. See supra, text accompanying note 34.
146. Van Gend en Loos, supra note 16
147. Francovich, supra note 17.
148. See Ran Hirschl, Towards Juristocracy: The Origins And Consequences Of The New Constitutionalism (Harvard Univ. Press 2004).
149. The U.S. Constitution provides for the Congress, ultimately, to resolve disputed presidential elections. See U.S. Const. art. II, §1 and Amend. XII (1804).
150. For a critical account of the Supreme Court decision, see Michel Rosenfeld, Bush v. Gore: Three Strikes for the Constitution, the Court and Democracy, But There Is Always Next Season, in The Longest Night: Polemics And Perspectives On Election 2000 111 (Arthur Jacobson & Michel Rosenfeld eds., Univ. Cal. Press 2002).