Types of Constitutional Review

The following is a discussion of different models of constitutional review institutions and thus probably thoroughly uninteresting if that's not your thing.

Working on the West Africa project allowed me to learn about alternative forms of judicial and constitutional review. In the U.S., as every law student, the Supreme Court is the final arbiter of legal and constitutional issues. At least, since Justice Marshall declared that "it is emphatically the province and duty of the judicial department to say what the law is." However, the U.S. system is in the minority, if not an anomaly in global judicial systems. Constitutional law in the U.S. is just that, United States Constitutional Law. It neglects the 150+ constitutions worldwide. This choice makes sense, as there is only one supreme law of the land in the U.S., and various bar exams aren't concerned with knowledge of foreign law. But, it made me wonder if I wouldn't have benefited from an hour or so of discussion on other constitutions.

In the 16 nations discussed in IDEA's West Africa project, some of them use a Supreme Court model very similar to the United States. Others (mostly those following the French civil law tradition) use a constitutional council. Still others use a constitutional court. Constitutional court's and councils are the supreme arbiter of constitutional issues (and often electoral disputes as well), but they are not the court of final appeal for other legal matters. Separate courts resolve these other legal disputes. Furthermore, other constitutions provide that legal proceedings halt in a lower court if one party raises a constitutional issue. This issue will then be directly appealed to the constitutional court or council for immediate resolution. This process takes the issue out of the normal judicial system for resolution by the constitutional review institution. Once the constitutional issue is resolved, the case returns to the lower court and the normal legal process continues.

In addition, other constitutions detail levels and functions of courts in the country, much to the opposite of the U.S. Art. III provision vesting judicial power in the Supreme Court and "in such inferior courts as Congress may from time to time ordain and establish." Thus, the judicial systems or numbers and jurisdictions of lower courts are set out in the constitution and not normal legislation, like in the United States.

Initially, I found myself reading these West African constitutions with a furrowed brow. Confused, I wondered why constitutional drafters would create a judicial system without on definite, clear, supreme court of last resort for all legal and constitutional issues. I think clarity and expedience of process answer answer my questions. By creating a separate court for pure constitutional issues, these other systems might prevent lengthy appeals process over a purely constitutional issue. Instead of spending years traveling up the ladder of courts, the constitutional issues can be resolve as soon as it appears by a special court, thus allows cases to be resolved faster. In addition, detailing the judicial system in the constitution makes the judiciary more permanent and might prevent the legislature from jurisdiction stripping or even eliminating entire courts.

Another interesting topic is of pre-enactment constitutional review. A few of the nations require (or at least allows) the constitutional review institution to evaluate the constitutionality of a law before it is enacted. This concept was totally foreign to me (obviously). I still remember learning about the dangers of advisory opinions and the critical role of standing in U.S. federal court litigation. How can a nation survive with systems like these?! I think the answer might be in the more detailed division of power in the various constitutions. In classic checks and balances fashion, constitutional drafters insert provisions into the constitution requiring judicial approval before any legislation can be adopted in order to prevent an overpowered legislative branch.

As one of the upcoming projects I’ve been assigned involves constitutional review and judicial powers in Africa, I am sure that I will have an opportunity to learn more about the different methods of constitutional review.