Common law adjudication, on the other hand, seems to strike a middle ground between the work of the ordinary judge and that of the constitutional judge. These are: the foundations of constitutional adjudication; the relevant conception of the rule of law; and the sense in which the constitution is law. As will be discussed below, the American conception of the rule of law differs from the German conception of the Rechtsstaat and from the French conception of the État de droit.
More fundamentally, something can explain the decision in the unprecedented case of the cat, absent a political decision. These sources must not be more political than those contained in the laws of the Rechtsstaator of the État Légal. The role of the judge is more crucial to the success of the rule of law than that of the Rechtsstaator in État de droit.
But whether common judge or constitutional judge, the continental judge is always on the side of the state. Moreover, these two pairs of constraints are interrelated in the common law context, as problems of foreseeability appear more manageable if the rule of law is understood to be primarily about procedural guarantees. In the American context, values and policies may not be directly tied to the Constitution, but rather emerge in the broader context of the Constitution as law embedded in the American rule of law tradition.
Constitutional adjudication and the countermajoritarian problem
Constitutional judgment and the counter-majority problem. erroneous or abusive constitutional judgment is to amend the Constitution, which is extremely difficult in the United States.71 As those preoccupied with noting the countermajoritarian difficulty, the Constitution establishes majority rule as the norm—well, different majorities can compete against each other or share the sphere of democratic law-making between them—. while anti-majoritarian constitutional restrictions are an exception.72 For example, although the US Congress is authorized to regulate interstate commerce,73 it cannot prohibit the interstate transportation of books critical of the president as this would violate the rights of freedom of speech. speech protected by the constitution. 74. This restrictive view of the legitimate role of the judge, however, contradicts the customs ingrained through the use of common law methodology. Thus, the countermajority difficulty becomes more acute because, although the Constitution was created as a statute, its broad terms and case law seem to conspire to transform it into a distinct extension of the common law.
In Canada, the problem of counter-majoritarian power is largely absent because the problem of unchecked control is addressed by section 33 of the Constitution,76 which in many cases allows legislative override of a constitutional supreme court. In stark contrast, changing the constitution in France or Germany requires a much less burdensome process, although the German constitution contains some immutable provisions. In France and Germany, by contrast, there appears to be little concern about a counter-majoritarian problem, even though these two countries, along with the other constitutional democracies in the European Union, face a much larger "democratic deficit" than could be possible. possibly created by the American judiciary.78 This deficit arises from the lack of democratic accountability of the EU institutions that have legislative powers. It is further aggravated by rulings of the European Court of Justice, which are binding on the judiciary of Member States and require Member States to set aside laws that are contrary to Union law as interpreted by the European Court of Justice.79
Because, as already mentioned, the constitutions of France and Germany are much easier to amend than that of the United States, the effects of judicial invalidation of popular laws are much less drastic.80 Thus, the situation in France and Germany falls. 77 Decisions in certain areas, such as freedom of speech, cannot be overridden. 80 In France, for example, amending the constitution to overcome an invalidity of a law by the Constitutional Council is a smooth process that has often been used..somewhere between the state of affairs prevailing in Canada and that of the United States. In France and Germany, the decisions of the constitutional judge cannot be overridden by simple majority means as is possible in Canada, but they can be overridden by regularly accessible supermajority means.
Third, because of the civil law tradition and its syllogistic model of regulation, European constitutional adjudication seems in little danger of proving too counter-majoritarian. However, significantly because of the different traditions involved, criticism of a civil law constitutional judge who appears to have gone too far is not likely to be on countermajoritarian grounds, but, rather, on something different. , such as the implementation of "supraconstitutional norms" 81. The Constitutional Council found certain provisions of the Amsterdam Treaty of European Union unconstitutional, SEE97-394 DC of 31 December 1997), the French Constitution was amended and the treaty ratified.
Constraining the constitutional adjudicator through canons of interpretation: The divide over originalism
Not only does statutory interpretation require fidelity to the legislature's intent, but the extraordinary wisdom of constitutional legislators makes fidelity to their intent the optimal means of achieving the common good. The latter point of view has prevailed and the constitution has become firmly entrenched as the supreme law of the land.87 Nevertheless, the debate among advocates of these two positions has been recast as a debate about the legal means of constitutional interpretation when the constitutional text is open or is not directly outcome-determining. In its broadest sense, originalism is one of the three main approaches to constitutional interpretation that have been drafted in the shadow of the countermajoritarian difficulty.
Principle-based theorists aim, for their part, to compel judges to decide cases according to the dictates of principles that are (according to them) enshrined in the constitution.89 On the other hand, according to the most eminent process-based theory, that of John Hart Ely90, judicial interpretation of the US Constitution can be justified, generally, as a means of protecting the integrity of the democratic process. Viewed from the perspective of the types of arguments made in constitutional cases by lawyers and by judges in giving reasons for their decisions, American and German practices are, in most important respects, largely similar. Since the text of the Constitution is rarely determinative in cases involving major constitutional issues,102 arguments from the text must, in most cases, be combined with other arguments to justify a particular decision.
Both look to past insights of the relevant constitutional provisions when asked to interpret them to resolve a current constitutional challenge. Both place the constitutional text at issue in the present case in the broader context within the constitution, and interpret it from the premise of the constitution as a systematic and coherent whole. Teleological arguments are purposeful and promote an interpretation of the Basic Law and its provisions in accordance with the purposes for which constitutional rule was established in Germany.
Of these two differences, the latter seems more important when one considers the great disagreements in the United States about the meaning of the framers' intentions. This is the difference, which was discussed at the outset112, between the civil law approach to decision making and the common law. Potentially, this difference could be huge in the context of the legitimacy of constitutional interpretation.
Assessing the differences between American and European attitudes regarding constitutional adjudication
Moreover, as most of these divisive issues end up before the Supreme Court, and as the Constitution has played a major role in shaping the country's national identity, constitutional jurisprudence has been at the forefront of the culture wars and the fight for the national identity of the country. evolving identity. In times of solid consensus, the common law tradition and the role of the constitutional referee as a mediator between the state and the citizen can do just that. However, when consensus breaks down, as currently appears to be the case, the constitutional judge has no choice but to take sides and thus cannot promote harmony, whether he or she is on the side of the state or of the citizen.
Moreover, the fact that the constitution does not explicitly address these issues exacerbates the problem and contributes to further shrinking the legitimacy of constitutional interpretation. Undoubtedly, most of the existing frustrations and grievances would be transferred away from the courts. As is well known, German society is more paternalistic and less individualistic than American society, and in post-World War II Germany there is a disillusionment with politics that strengthens the legitimacy of the constitutional judge.121 There are also two institutional differences between the two. countries, which to some extent contribute to the greater acceptance of constitutional justice in Germany.
One such difference, already mentioned, is the relative ease of constitutional change in Germany.122 While, for example, affirmative action in the United States remains a highly controversial issue, leading to a series of closely divided and often contradictory Supreme Court rulings on some twenty years. Over a period of five years123, the constitutional legitimacy of gender-based positive discrimination in Germany was regulated by an amendment to the Basic Law124. Apart from these institutional differences, and given the great power of the German Constitutional Court, the main difference between the countries is the much greater consensus in Germany on the fundamental values behind and inherent in constitutional governance, led by the constitutional power. juror. Moreover, this debate is conducted both within the Council and outside it.129 According to one side, the Council is an extension of the political branches and as such its actual role is political.
Even if such norms represent European or European Union standards and may or may not be supported by a significant majority of French citizens, conflict over them is unlikely to be focused on the French constitutional judge. 131 Technically speaking, the relevant norms are treaty-based norms, whether they derive from the European Convention on Human Rights or the various treaties between the members of the European Union. However, from a substantive point of view, many of the relevant treaty-based norms have all the characteristics of legally enforceable constitutional norms.
Conclusion