Ancillary powers of constitutional courts

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1431-1461

  Ginsburg, Tom ^a   Elkins, Zachary ^b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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[No Author keywords available]

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EID: 69249152549     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (183)

1. See Torbjörn Vallinder, When the Courts Go Marching In, in THE GLOBAL EXPANSION OF JUDICIAL POWER 13, 23 (C. Neal Tate & Torbjörn Vallinder eds., 1995) (describing Austria's adoption of Hans Kelsen's BV-G constitutional text in 1920, which established a national court equipped with the power of judicial review).
2. See, e.g., Ran Hirschl, The Judicialization of Politics, in THE OXFORD HANDBOOK OF LAW AND POLITICS 119, 126-127 (Keith E. Whittington et al. eds., 2008) (describing how judicial bodies in countries throughout Asia, Africa, and Latin America have played an increasingly crucial role in electoral processes and political accountability movements, and identifying specific countries that have adopted constitutional courts).
3. See Martin Shapiro, Public Law and Judicial Politics, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II 365, 365-366 (Ada W. Finifter ed., 1993) (lamenting that public-law scholarship focuses largely on the Supreme Court's constitutional law opinions and votes, a topic too broad and sporadic to have any meaningful impact on everyday American politics).
4. See Tom Ginsburg, The Global Spread of Constitutional Review, in THE OXFORD Handbook of Law and Politics, supra note 2, at 81, 83-84 (discussing possible causes for the emergence of judicial review under the U.S. Constitution).
5. See TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES 1-4 (2003) (illustrating how judicial review has largely replaced notions of parliamentary sovereignty as the primary vehicle of constitutional interpretation in modern Europe).
6. 5 U.S. (lCranch) 137 (1803).
7. See M.C. MIROW, LATIN AMERICAN LAW 107-108, 111 (2004) (detailing the transformative impact the introduction of judicial review had on Mexican and Argentine governmental structures in the nineteenth century).
8. Rune Slagstad, The Breakthrough of Judicial Review in the Norwegian System, in CONSTITUTIONAL JUSTICE UNDER OLD CONSTITUTIONS 81, 81 (Eivind Smith ed., 1995).
9. All data in this Article is drawn from the authors' Comparative Constitutions Project, which collects information about the formal characteristics of contemporary and historical written constitutions. For a description of the project and its methodology, see Tom Ginsburg & Zachary Elkins, Comparative Constitutions Project, http://www. comparativeconstitutionsproject.org/(specific data is on file with the authors).
10. Ginsburg, supra note 4, at 85 (explaining that the constitutional-court model used in Europe post-World War II emanated from Kelsen's Austrian initiative, which subjugated legislative acts to judicial review).
11. Id. The exception being Estonia, where the Supreme Court functions as both an ordinary high court and a court of constitutional review. EESTI VABARIIGI Põhiseadus [Põhiseadus] [Constitution] art. 149 (Est.), translated in 6 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Rildiger Wolfrum & Rainer Grote eds., 2009).
12. See Miguel Schor, An Essay on the Emergence of Constitutional Courts: The Cases of Mexico and Colombia, 16 IND. J. GLOBAL LEGAL STUD, (forthcoming 2008) (manuscript at 4, on file at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=1134183) (distinguishing the constitutional powers of the Mexican Supreme Court, which "police[s] vertical and horizontal paration of powers, " from those of the Colombian Constitutional Court, which acts to "deepen the social bases of democracy by constructing rights").
13. See LUIS LOPEZ GUERRA, EUR. COMM'N FOR DEMOCRACY THROUGH LAW, CONFLICT RESOLUTION IN FEDERAL AND REGIONAL SYSTEMS 3 (2002), http://www.venice.coe.int/ docs/2002/CDL-JU(2002)024-e.pdf ("The truth is that with only a few exceptions, in Europe the task of judicially resolving conflicts between central and regional or federal authorities is usually assigned to Constitutional Courts or equivalent judicial bodies."). The distinct nature of conflict resolution is evident in constitutions that have special procedures for resolving conflicts of competence.
14. See, e.g., BUNDES-VERFASSUNGSGESETZ [B-VG] [Constitution] BGB1 No.1/1930, as last amended by Bundesgesetz [BG] BGB1 I No. 100/2003, art. 138, § 1(c), (Austria), translated in 1 Constitutions of the Countries of the World, supra note 11 (granting the Constitutional Court the power to pronounce on conflicts of competence between a state and the Federation);
15. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Constitution] art. 93, §§1, 3-4 (F.R.G.), translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (granting the Federal Constitutional Court authority to rule on "disputes" or "disagreements" between the Federation and the Länder);
16. CONSTITUCIóN [C.E.] art. 161, §§ 1(c), 2 (Spain), translated in 17 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (granting the Constitutional Court the power to resolve jurisdictional and statutory disputes between "the State and the Autonomous Communities"). Occasionally, provisions for multiple lawmakers are utilized in a constitutional text with regard to specific territories as a means of ensuring their acquiescence to central authority. In Finland, for example, the Supreme Court can determine conflicts between the central state and the Aland Islands.
17. See SUOMEN PERUSTUSLAKI [PERUSTUSLAKI] [Constitution] § 120 (Fin.), translated in 17 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (granting the Aland Islands self-governance as a matter of constitutional right and incorporating the Act on the Autonomy of Aland (1991), which gives the Supreme Court authority to decide conflicts of authority under § 60). The Bosnia-Herzegovina constitutional text (which was part of the 1995 Dayton Agreement) similarly gives the Court competence to resolve disputes between the two geographic entities. CONST. BOSN. & HERZ. art. VI, § 3(a).
18. See John D. Huber, Executive Decree Authority in France, in EXECUTIVE DECREE AUTHORITY 233, 233 (John M. Carey & Matthew Soberg Shugart eds., 1998) (remarking that "the French Constitution of 1958 creates two executives, a president and a prime minister" and that "[fjor both of these executives, decree authority is an important ingredient").
19. Alec Stone, The Birth of Judicial Politics in France 47 (1992) ("The function of the Council was made explicit: to facilitate the centralization of executive authority, and to ensure that the system would not somehow revert to traditional parliamentary orthodoxy.").
20. See id. at 37, 41-45 (describing how the Preamble to the French Fourth Republic Constitution gradually became accepted as an authoritative constitutional document despite the creators' apparent contrary intentions).
21. See id. at 45 ("Courts... began to catalog, and quite explicitly, a vast array of constitutional and extra-constitutional principles[, ]... including] such discoverable notions as 'individual liberty, ' 'equality before the law, ' 'freedom of conscience, ' and 'nonretroactivity'....").
22. 198 U.S. 45 (1905).
23. See, e.g., Romer v. Evans, 517 U.S. 620, 635-36 (1996) (holding that a Colorado state constitutional amendment seeking to preclude legal protection of gay rights was unconstitutional);
24. Batson v. Kentucky, 476 U.S. 79, 100 (1986) (holding that a state denies defendants equal protection when members of the community who share a common ethnicity with the defendant are purposely excluded from being on the jury);
25. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963) (granting indigent criminal defendants the right to legal counsel);
26. Brown v. Bd. of Educ, 347 U.S. 483, 495-96 (1954) (prohibiting racial segregation of public schools).
27. MARTIN SHAPIRO, COURTS 28 (1981) [hereinafter Shapiro, Courts] ("Nearly all contemporary students of courts agree that courts do engage in at least supplementary and interstitial lawmaking, filling in the details of statutory or customary law. In several major systems courts go far beyond interstitial lawmaking.") (endnote omitted);
28. MARTIN SHAPIRO, THE SUPREME COURT AND ADMINISTRATIVE AGENCIES 21-22, 93-95 (1968) [hereinafter SHAPIRO, SUPREME COURT] (noting that both courts and agencies play major policy-making roles on constitutional issues in the United States).
29. CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS bk. XI, ch. 6 (Anne M. Cohler et al. trans, and eds., Cambridge University Press, 1989) (1750).
30. See Martin Shapiro, Judges As Liars, 17 HARV. J.L. & PUB. POL'Y 155, 155-156 (1994) ("[Courts] must always deny their authority to make law, even when they are making law.").
31. E.g., STONE, supra note 15;
32. Alec Stone, The Birth and Development of Abstract Review: Constitutional Courts and Policymaking in Western Europe, 19 POL'Y STUD. J. 81 (1990) [hereinafter Stone, The Birth and Development of Abstract Review];
33. Alec Stone, Complex Coordinate Construction in France and Germany, in THE GLOBAL EXPANSION OF JUDICIAL POWER, supra note 1, at 205 [hereinafter Stone, Complex Coordinate Construction].
34. See Stone, The Birth and Development of Abstract Review, supra note 23, at 84 (explaining that in the French system of a priori review, laws are referred to the court by politicians after adoption but before promulgation, effectively extending what would otherwise be a concluded legislative process).
35. STONE, supra note 15, at 8-9.
36. Id.
37. See SHAPIRO, SUPREME COURT, supra note 20, at 9-11 (describing how the Supreme Court functions as a dispute-resolution body that settles disagreements over the validity and interpretation of statutes and regulations).
38. See WILLIAM N. ESKRIDGE, Jr., Dynamic Statutory Interpretation 69 (1994) (claiming that legislative and executive forces act as political constraints on the Supreme Court's decision-making function).
39. See, e.g., id. (demonstrating that an interpreter's statutory interpretations are "constrained both by the way the issue is framed for her from below and by the prospect that her interpretation will be overridden from above");
40. John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 INT'L REV. L. & ECON. 263, 263 (1992) ("If a court's decision fails to reflect external political reality, it cannot stand for long.").
41. See Ferejohn & Weingast, supra note 29, at 267-269 (building a one-dimensional model of the Court's authority to enact its policy preferences vis-à-vis previously enacted legislation).
42. See, e.g., LEE EPSTEIN & JACK KNIGHT, The Choices Justices Make 138-57 (1998) (delineating the ways in which the Court is constrained by separation of powers and using the parties' briefs in a random sampling of cases to show that the Court is often informed of the preferences of other political actors);
43. see also LOUIS FISHER, CONSTITUTIONAL DIALOGUES: Interpretation as Political Process 233-47 (1988) (outlining the means by which constitutional interpretation is a shared enterprise calling on the best efforts of both Congress and the Judiciary).
44. See Robert D. Cooter & Tom Ginsburg, Comparative Judicial Discretion: An Empirical Test of Economic Models, 16 INT'L REV. L. & ECON. 295, 296 (1996) (arguing that the American system fosters more "judicial creativity" than the British system because the presence of a bicameral Congress and a President provides three independent vetoes on new legislation, thereby "allowing] the court[s] to diverge FÜRther before provoking a legislative correction").
45. See id. at 308-09 (postulating that the development of the European Union, with an increasingly powerful European Parliament, has increased legislative resistance and in turn expanded the judicial discretion of the European Court of Justice).
46. See ESKRIDGE, supra note 28, at 131, 130-32 ("[T]he traditional rule has been that patterns of statutory interpretations by agencies and courts adapting a statute to changed circumstances are presumptively valid so long as they have been brought to Congress's attention and Congress has not changed them.").
47. See id. at 132 (arguing that one reason to separate the legislative and judicial powers is to leave the legislative agenda uncluttered by issues of statutory fine-tuning).
48. See GINSBURG, supra note 5, at 18 (viewing judicial review as a form of political insurance for elected constitutional drafters that guarantees them a forum to challenge the legislature if they lose their postconstitutional elections).
49. See id. at 19 ("Political uncertainty leads to the adoption of judicial review as a form of insurance to protect the constitutional bargain.").
50. See, e.g., KONSTITUCIIA CHECHENSKOJ RESPUBLIKI [KONST. CHECH. ICH.] [Constitution], 1992, art. 65 (Chechen Republic of Ichkeria), translated in 4 CONSTITUTIONS OF DEPENDENCIES AND TERRITORIES (Philip Raworth ed., 2005) (including the courts with Parliament and the President in the group that has the right of legislative initiative);
51. FederaPnyi Konstitutsionnyi Zakon [FKZ] [Federal Constitutional Law], O Konstitutsionnyi Sud Rossiiskoi Federatsii [Konst. Sud RF] [On the Constitutional Court of the Russian Federation], Sobranie Zakonodatel'stva Rossiiskoi Federatsii [SZ RF] [Russian Federation Collection of Legislation] 1994, No.13, Item 1447, art. 3, § 6, translated in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 ("[The Constitutional Court] shall take legislative initiative on matters within its jurisdiction.").
52. See, e.g., KONSTITUTSIYA NA BALGARIYA [Konst. BULG.] [Constitution] art. 149, § 1(5), translated in 3 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (declaring that the Constitutional Court will rule on disputes concerning the constitutionality of political parties);
53. GG art. 21, § 2 (F.R.G.) (declaring parties that seek to impair or abolish the free democratic basic order unconstitutional);
54. ZHONGHUA MlNGUA XlANFA ZENG Xiu DlAO WEN [Xianfa ZENG Xiu DlAO WEN] [Additional Articles to the Constitution] art. 5 (Taiwan), translated in 18 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 ("[The] Constitutional Court [shall] adjudicate matters relating to ... the dissolution of unconstitutional political parties.").
55. See, e.g., HAYASTANI HANRAPETOWT'YAN SAHMANADROWT'YOWNY, 1995 [SAHMANADROWT'YOWNY] [Constitution], art. 100, § 6 (amended 2005) (Arm.), available at http://www.president.am/files/output.php?fid=111 (establishing the Constitutional Court's ability to certify whether or not the President has grounds to invoke a state of emergency).
56. See, e.g., KONST. BULG. art. 149, § 1(8) (directing the Court to rule on impeachment of the President or Vice President once it is initiated by the National Assembly);
57. GG art. 61, § 1 (F.R.G.) (empowering the Federal Constitutional Court with the ability to declare that the President forfeited his or her office by willfully violating the Basic Law);
58. A Magyar KöZTÁRSASÁG ALKOTMÁNYA [ALKOTMÁNYA] [Constitution] art. 31/A, § 6 (Hung.), translated in 8 CONSTITUTIONS OF THE Countries of the World, supra note 11 (allowing the Court to remove the President after an impeachment proceeding if it finds that he has violated the law);
59. MONGOL ULSYN ÜNDSEN KHUULI [ÜNDSEN KHUULI] [Constitution] art. 35, § 2 (Mong.), translated in 12 CONSTITUTIONS OF THE COUNTRIES OF THE World, supra note 11 (allowing for removal of the President on the basis of findings from the Constitutional Court of an abuse of power).
60. See, e.g., GG art. 41, § 2 (F.R.G.) (allowing for complaints concerning electoral legitimacy and oversight to be lodged with the Federal Constitutional Court);
61. La CONSTITUTION [1958 CONST.] arts. 58-60 (Fr.), translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (granting the Constitutional Council the power to examine electoral disputes);
62. LIETUVOS RESPUBLIKOS KONSTITUCIJA [LITH. KONST.] [Constitution] art. 105, § 3(1) (Lith.), translated in 11 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (requiring the Constitutional Court to present conclusions about violations of election laws in presidential or parliamentary elections).
63. See Rules Enabling Act, 28 U.S.C. § 2072(a) (2000) ("The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence ....");
64. James E. Pfander, Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers, 101 COLUM. L. Rev. 1515, 1518 (2001) (observing that the Supreme Court's power "to exercise wide ranging, freestanding supervisory powers over inferior courts and ministerial officers" is rooted in Anglo-American jurisprudential precedent).
65. See 28 U.S.C. § 593(b)(1) (2000) ("Upon receipt of an application ... the division of the court shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction.").
66. KANSTYTUCYJA RÈSPUBLIKI BELARUS' [Kanst. BELR.] [Constitution], art. 130 (repealed 1996).
67. Rett R. Ludwikowski, Constitution Making in the Countries of Former Soviet Dominance: Current Development, 23 GA. J. INT'L & COMP. L. 155, 190 (1993).
68. AZERBAYCAN KONSTITUSIYA [AZER. KONST.] [Constitution] art. 130, §3 (Azer.), translated in 1 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (enumerating the current powers of the Constitutional Court of Azerbaijan, which do not include the ability to dissolve Parliament).
69. S. AFR. CONST. 1996 § 144.
70. CONSTITUIĈÃO DA REPÚBLICA PORTUGUESA [CONST. PORT.] art. 223, § 2(a), translated in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11.
71. Tom Ginsburg, Constitutional Afterlife: The Continuing Impact of Thailand's Post-political Constitution, 7 INT'L J. CONST. L. 83, 94 (2009).
72. RÁTTÀTAMMÁNOON HÀENG RAǍTCHÁ ANAAJAK TAI [RÁTTÀTAMMÁNOON] [Constitution] art. 139 (Thail.), translated in 18 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11.
73. See id. § 185 (stipulating that the Constitutional Court presides over complaints by legislators that a potential Emergency Decree is unconstitutional and determines whether the complaints are valid).
74. Id. §§91, 233.
75. Id. §§ 65, 68.
76. Id. §§ 113, 231, 243, 246.
77. RÁTTÀTÁMMANOON, 1997, §295 (Thail.) (repealed 2007). For FÜRther discussion of this role of the Constitutional Court of Thailand, see infra notes 101-114 and accompanying text.
78. See, e.g., Michel Rosenfeld, Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts, in EUROPEAN AND US CONSTITUTIONALISM 197, 200 (Georg Nolte ed., 2005) ("The constitutional judge as negative legislator may invalidate laws only to the extent that they contravene formal constitutional requirements... and, therefore, may remain largely apolitical.").
79. See HANS KELSEN, GENERAL THEORY OF Law & STATE 268 (Transaction Publishers 2006) (1949) ("The annulment of a law is a legislative function, an act-so to speak-of negative legislation. A court which is competent to abolish laws-individually or generally-functions as a negative legislator.");
80. Clemens Jabloner, Introduction to Reprinted Works of Hans Kelsen, in Weimar: A Jurisprudence of Crisis 67, 71 (Arthur J. Jacobson & Bernhard Schlink eds., Belinda Cooper et al. trans., 2002) (remarking that during Kelsen's service on the Austrian Constitutional Court, "establishing the court's theoretical and constitutional basis remained at the center of Kelsen's commitment").
81. See STONE, supra note 15, at 108 (stressing that "every Council decision objectively constitutes the final stage of one legislative process, " and therefore "the Council can be fruitfully conceptualized as a kind of third legislative chamber").
82. See, e.g., GEORGE TSEBELIS, VETO PLAYERS: HOW POLITICAL INSTITUTIONS WORK 19 (2002) (elaborating a concept whereby the "constitution of a country can assign the status of veto player to different individual or collective actors, " who are then institutional veto players in that constitutional system);
83. Mathew D. McCubbins, Legislative Process, in THE ENCYCLOPEDIA OF DEMOCRATIC THOUGHT 403, 408 (Barry Clarke & Joe Foweraker eds., 2001) (describing the veto gate as a "negative agenda control").
84. See ÚSTAVA SLOVENSKEJ REPUBLIKY [ÚSTAVA] [Constitution] art. 127, §2 (Slovk.), translated in 18 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 ("If the violation of rights or freedoms... has arisen due to the inactivity of the other party, the Constitutional Court may order it to act on the issue.");
85. The Constitutional Court Act art. 68, § 1 (1988) (Kor.), translated in 10 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 ("Any person who claims that one or more of his or her basic rights ... have been violated by an exercise or non-exercise of governmental power may file a constitutional complaint with the Constitutional Court....");
86. DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 53 (2nd ed., rev. & expanded 1997) (indicating the effectiveness in Germany of using "admonitory decisions" to declare legislative omissions inconsistent with the constitution);
87. GINSBURG, supra note 5, at 143-44 (describing the imposition of deadlines for compliance on the legislature by the Judicial Yuan of Taiwan);
88. HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POST-COMMUNIST EUROPE 79-80 (2000) (asserting that "omissions jurisdiction" imparts upon the Hungarian Constitutional Court essentially the ability to mandate specific legislation);
89. CONST. COURT OF THE REPUBLIC OF SLOVN., PROBLEMS OF LEGISLATIVE OMISSION IN CONSTITUTIONAL JURISPRUDENCE 3 (2007), http://www.lrkt.lt/conference/ Pranesimai/Euroconference%20Vilnius-anglesko%20besedilo.doc ("[C]ertain omissions of the legislature can entail unconstitutional gaps in the law.").
90. See, e.g., CONST. COURT OF THE REPUBLIC OF Slovn., supra note 61, at 5 (indicating that Article 40 of the Slovenia Constitutional Court Act empowers the Court to operate as a "positive legislator, " suggesting and imposing laws of its own creation).
91. The use of deadlines in this type of review is slightly at odds with the rule-of-law imagery underlying constitutional court power. The court finds that legislation violates the constitution, but lets it stand for a designated period. SCHWARTZ, supra note 61, at 80. Those affected by the legislation will be treated as constitutionally bound one day, and not bound a day later after the deadline. Clearly this type of system is a pragmatic recognition of the dialogue phenomenon.
92. KONSTITUTSHA ROSSIISKOI FEDERATSH [KONST. RF] [Constitution] art. 104 (Russ.), translated in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11;
93. see also SCHWARTZ, supra note 61, at 256 n.32.
94. David M. Hedge, GOVERNANCE AND THE CHANGING AMERICAN STATES 160 (1998).
95. SHAPIRO, SUPREME COURT, supra note 20, at 18.
96. See, e.g., Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 HARV. Int'L L.J. 1, 52 (1995) (discussing, among other examples, the Turkish Constitutional Court's prohibition of moderate Kurdish-oriented parties, which the Court believed were "destroying the ... indivisible integrity of the territory and the people and the existence of the Turkish state") (internal citations omitted).
97. GG art. 21, § 2;
98. see also KOMMERS, supra note 61, at 13 (labeling art. 21, § 2 as the "most vivid expression" of the German Federal Constitutional Court's role as guardian of the constitutional order).
99. KOMMERS, supra note 61, at 217-24. These were the Communist Party Case, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Aug. 17, 1956, 5 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 85, and the Socialist Reich Party Case, BVerfG Oct. 23, 1952, 2 BverfGE 1, translated in part in KOMMERS, supra note 61, at 218-222
100. Specifically, Article 47 of the 1886 Colombian Constitution, Article 102 of the 1940 Cuban Constitution, and Article 32 of the 1945 Guatemalan Constitution. Ginsburg & Elkins, supra note 9.
101. Id.
102. Id.
103. Id.
104. See ROBERT B. AHDIEH, RUSSIA'S CONSTITUTIONAL REVOLUTION: LEGAL Consciousness and the Transition to Democracy 1985-1996, at 80-83 (1997) (describing the Russian Constitutional Court's decision to uphold Yeltsin's decrees banning the Communist Party's national body).
105. See KRASSIMIR KANEV & METO JOVANOVSKI, INT'L HELSINKI FEDERATION FOR HUMAN RIGHTS, MACEDONIANS OF BULGARIA IN UNCERTAINTY 1 (2000), http://www.ihf-hr.org/viewbinary/viewdocument.php?doc-id=5080 ("On February 28, 2000 the Constitutional Court of Bulgaria declared unconstitutional OMO Ilinden-PIRIN, the political party of the Macedonians of Bulgaria ....").
106. See USTAV NA REPUBLIKA MAKEDONIJA [USTAV MACED.] [Constitution] art. 110 (Maced.), translated in 11 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11 (establishing human rights, civil liberties, peace, and coexistence as values underlying the Macedonian Constitution and nation, and granting to the Constitutional Court the authority to decide whether the "programmes and statutes" of political parties are conforming to the Constitution).
107. See GG art. 21 (requiring that political parties' internal organization conform to democratic principles and banning as unconstitutional parties that by their aims or even the behavior of their supporters seek to overthrow German democracy).
108. See XlANFA ZENG XlU DlAO WEN art. 5 ("The Grand Justices of the Judicial Yuan shall... form a Constitutional Court to adjudicate matters relating to... the dissolution of unconstitutional political parties.").
109. See id. (explaining that in addition to interpreting the Constitution and unifying the interpretation of laws and ordinances, the Judicial Yuan shall form a Constitutional Court to adjudicate matters regarding the impeachment of the President and Vice President and the dissolution of unconstitutional political parties).
110. KOMMERS, supra note 61, at 1.
111. See supra Table 1.
112. See, e.g., KONST. BULG. art. 149, § 1(8) (providing that the Constitutional Court "[r]ules on the impeachment initiated by the National Assembly against the President");
113. GG art. 61, § 1 (F.R.G.) ("The Bundestag or the Bundesrat may impeach the Federal President before the Federal Constitutional Court for willful violation of this Basic Law or any other federal law."). A related role is to determine disqualification of legislators.
114. See, e.g., KONST. BULG. art. 72, §§ 1-2 (granting the Constitutional Court the role of terminating the powers of national representatives upon "the establishment of ineligibility or incompatibility").
115. See Julie R. O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 GEO. L.J. 2193, 2236-2237 (1998) (explaining the use of impeachment as a device to remedy institutional conflicts).
116. See David S. Law, A Theory of Judicial Power and Judicial Review, 97 GEO. L.J. 723, 725 (2009) ("[C]ourts lack any obvious means of enforcing their decisions against other government actors.").
117. See id. at 758-761 (2008) (describing "mixed-motive games" and how various circumstances can affect the likelihood adversarial parties will work cooperatively when their dispute is mediated by a judicial body).
118. See Tom Ginsburg & Richard H. McAdams, Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution, 45 Wm. & MARY L. REV. 1229, 1235 (2004) ("Coordination games describe situations where parties have fully or partially common interests that can be achieved only if they coordinate their strategies among multiple possible equilibria.")
119. See Youngjae Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative Constitutional Perspective, 53 AM. J. COMP. L. 403, 406-407 (2005) (comparing the U.S. and Korean impeachment processes, and elucidating the increasing judicialization of megapolitical systems).
120. Id. at 408.
121. Id. at 409.
122. Id.
123. Id. at 410-411.
124. Id. at 411-412.
125. Id. at 412.
126. Id.
127. See id. at 411 (commenting that polls indicated seven out often Korean citizens opposed the impeachment).
128. Id. at 404.
129. See Norimitsu Onishi, South Korea's President Sags in Opinion Polls, N.Y. TIMES, Nov. 27, 2006, at A6 (describing President Roh as being "battered mercilessly in the polls").
130. See supra Table 1. Sometimes this is an appellate jurisdiction, as in Hungary, where the Court rules on appeals from the National Electoral Commission on the legality of particular questions subject to referenda. EUR. COMM'N FOR DEMOCRACY THROUGH LAW, DECISIONS OF Constitutional COURTS AND EQUIVALENT BODIES AND THEIR EXECUTION (2001), http://www. venice.coe.int/docs/2001/CDL-INF(2001) 009-e.asp. The following discussion of Thailand borrows heavily from Tom Ginsburg, Ancillary Powers of Constitutional Courts, in INSTITUTIONS AND Public Law: Comparative Approaches 225 (Tom Ginsburg & Robert A. Kagan eds., 2004).
131. EUR. COMM'N FOR DEMOCRACY THROUGH LAW, supra note 98.
132. 1958 CONST., arts. 58-60 (Fr.).
133. On Thailand, see Tom Ginsburg, Constitutional Afterlife: The Continuing Impact of Thailand's Post-political Constitution, 7 INT'L J. CONST. L. 83, 93 (2009), for a discussion of how constitutional mechanisms implemented by the 1997 Constitution that aimed to limit the authority of elected representatives remain evident despite the recent military coup.
134. Id. at 93-94.
135. Id. at 93.
136. Id.
137. Id.
138. Id. at 96.
139. 107. Id.
140. Id.
141. Id.; see also Peter Leyland, Thailand's Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs?, J. COMP. L., 2007 (Issue 2), at 151, 169 n.127 (discussing the Court's "unusual" vote-counting system used in the case to reach a majority).
142. Id. at 96-97.
143. Id. at97-98.
144. Id. at 98.
145. Id.
146. Seth Mydans & Thomas Fuller, With Premier at U.N., Thai Military Stages Coup, INT'L Herald Trib., Sept. 20, 2006, at 1.
147. These powers include adjudication of (1) electoral disputes, (2) allegations of political party illegality, and (3) charges of impeachment for the executive(s) or members of the legislature.
148. 531 U.S. 98 (2000).
149. See, e.g., Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 YALE L.J. 1407, 1408 (2001) ("Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the 'high' politics of political principle and the 'low' politics of partisan advantage.");
150. Erwin Chemerinsky, How Should We Think About Bush v. Gore?, 34 LOY. U. CHI. L.J. 1, 3 (2002) (observing people's acceptance of the fact "that the Court made political choices" in Bush v. Gore).
151. See Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (FrankFÜRter, J., dissenting) ("We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency.");
152. Max WEBER, Max WEBER ON LAW IN ECONOMY AND SOCIETY 213 n.48 (Max Rheinstein ed., Edward Shils & Max Rheinstein trans., 1954) (describing kadi as "a term of art to describe the administration of justice which is oriented not at fixed rules of a formally rational law but at the ethical, religious, political, or otherwise expediential postulates of a substantively rational law").
153. See Bush, 538 U.S. at 109 ("Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.").
154. See supra notes 85-87 and accompanying text.
155. REBEL WITHOUT A CAUSE (Warner Bros. 1955).
156. Cf. Ginsburg & McAdams, supra note 86, at 1235 (analogizing that when, for instance, two nations take adversarial positions, "each nation prefers to gain the territory by having the other side defer to its claim")
157. Interestingly, despite much criticism of the decision, the Court's legitimacy as an institution was affected only very slightly by the decision.
158. See Cornell W. Clayton, The Supply and Demand Sides of Judicial Policy-Making (Or, Why Be So Positive About the Judicialization of Politics?), 65 Law & CONTEMP. Probs. 69, 80 (2002) (positing that the Court's decision was justified);
159. Herbert M. Kritzer, The Impact o/Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court, 85 JUDICATURE 32, 33 (2001) ("The Court's action in Bush v. Gore was dramatic, subject to intense media coverage, and controversial, but the effects on public perceptions and knowledge of the Court were modest.").
160. Albanian electoral law provides for the judicial appeal of election results to the Electoral College of the Court of Appeals in Tirana, an eight person panel made up of specially selected appellate judges. Electoral Code, Law No. 9087, §§ 162-163 (Alb.). For elections involving members of the national assembly, however, the Albanian Constitution grants exclusive jurisdiction to the Constitutional Court. KUSHTETUTA E REPUBLIKËS SË SHQIPËRISË [KUSH. ALB.] [Constitution] art. 131(g), translated in 1 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 11.
161. See supra note 118 (discussing the term kadi);
162. SHAPIRO, COURTS, supra note 20, at 6 ("In most societies, however, there seem to be instances in which it pays to choose a big man to do the tasks, whether a government official like the urban praetor or, as among the Papuans, the owner of many pigs.").
163. Epstein & Knight, iupra note 31, at 12-13.
164. See supra notes 107-114 and accompanying text.
165. See, e.g., Adrian Karatnycky, Ukraine's Orange Revolution, FOREIGN AFFAIRS, Mar.-Apr. 2005, at 35, 45-46 (documenting the Ukraine Supreme Court's decision while acknowledging that, before the Court did so, the Parliament had already met and declared the prior poll invalid).
166. See GINSBURG, supra note 5, at 26 ("[J]udicial review has a reputation for effective minoritarianism that makes designers particularly likely to adopt it.").
167. See SHAPIRO, COURTS, supra note 20, at 2 (describing a "triad" in which two conflicting persons call upon a third for assistance in reaching a resolution and noting that "[a] substantial portion of the total behavior of courts in all societies can be analyzed in terms of attempts to prevent the triad from breaking down into two against one").
168. See KOMMERS, supra note 61, at 4, 8 (differentiating judicial review, which involves the review of the constitutionality of legislation, from constitutional review, which resolves political disputes between branches and levels of government);
169. see also id. at 28, 27-29 (discussing the German Constitutional Court's caseload and noting the "thin line between law and politics trod by the court" in cases of abstract judicial review, which are "almost always initiated by a political party on the short end of a legislative vote in the federal parliament or by the national or a state government challenging an action of another level of government controlled by an opposing political party or coalition of parties").
170. AHDIEH, supra note 74, at 78.
171. Id. at 50.
172. Id. at 41-42.
173. Id. at 80-81.
174. Id. at 81.
175. Id. The legal grounds of the case were complicated and better elaborated elsewhere. Suffice it to say that the case featured some bizarre arguments, such as when Yeltsin's team argued that the decree to ban a political association was legal under a 1932 Stalinist decree that permitted the Executive to undertake such action. Id.
176. Mat 82.
177. See id. (recounting the political exploits initiated by both parties and the seemingly tenuous position the Court attempted but failed to defend).
178. Mat 86.
179. Id. at 87. In fact, the decree never materialized and the opinion was only an advisory opinion. Id. at 87-88.
180. Sergey Pashin, A Second Edition of the Constitutional Court, 3 E. EUR. CONST. REV., Summer-Fall 1994, at 82, 82.
181. AHDIEH, supra note 74, at 149; Pashin, supra note 142, at 83.
182. See AHDIEH, supra note 74, at 149 (discussing the passage in 1994 of Article 125 of the Russian Constitution, which reestablished the Court);
183. KONST. RF art. 125 (enumerating the current powers of the Constitutional Court, which no longer include the ability to declare parties unconstitutional).