Constitutional Courts as Lawmakers: A Commentary on the Lecture by Prof. Dr. Rupert Scholz, 'Constitutional Court Jurisdiction between Constitutional Law and Politics Taking the German Federal Constitutional Court as an Example'

Abstract

This paper was presented at the conference Mission and the Condition of the Supreme Court in the Contemporary Society organized by the Ritsumeikan University, Kyoto, Japan, July 2013.The power of judicial review is the power to declare legislation (or action by the government) unconstitutional. Courts vested with this authority are properly denominated, whether judicial review is their exclusive function, as is the case with the German Federal Constitutional Court, or whether judicial review is but one of their functions, as is the case with the Supreme Court of the United States. The basic point of judicial review is to insulate constitutional or fundamental law from the pressures of the transitory needs perceived by the immediate majority operating under the constitution. It is true, though, that constitutional courts operate within the arena of politics, and it is also true that the decisions of constitutional courts, which are sometimes quite controversial, operate within political arena and often make law. I have developed a model that may lessen some of the “political” discomfort that arises from the practice of judicial review and make it more legitimate. My model suggests that constitutional decisions should be premised on “durable principles,” by which I mean legal standards that can, by logic and analogy, be applied uniformly to a wide range of similarly situated cases. The articulation and application of those standards must be justified through a reasoned elaboration that takes into account the full sweep of constitutional text and tradition, considers the measure of evolving cultural norms, including new perspectives on established standards, and presents a fair and thorough consideration of real-world consequences. Taken together, this decisionmaking process represents an act of creation, but does so within the breadth of the existing constitution.