Constitutional Review in the European Legal Space: A Political Science Perspective

Abstract

Abstract In this contribution, I present the hypothesis that constitutional review in both the democratic nation-state and the European legal space allows for a method of reflecting on social problems that differs from the mode of politics and, precisely because of the difference between judicial and political decision-making, increases the capacity for legitimate and effective governance. There are six conditions for such a positive potential of constitutional review for democracies. First, citizens must trust constitutional courts and law should be rooted in socially accepted values. Second, democratic, transparent, and diversity-oriented procedures for the selection and election of constitutional court judges are necessary for legitimate constitutional review. Third, constitutional review requires independent courts and a specific way of judicial decision-making that differs from politics. Fourth, a division of labour between constitutional courts and parliaments, linked to the functions of both institutions, ensures the effective protection of the constitution. Fifth, complying with the principle of subsidiarity is crucial because supranational and international courts have insufficient knowledge of national law and, vice versa, national constitutional courts have insufficient knowledge of European law. And finally, the sixth condition is to develop a European understanding of the legal norms of the European Union and the Council of Europe while respecting cultural, legal, and political differences between nation-states. After describing these normative conditions, I will empirically examine whether and to what extent these conditions for the legitimacy and problem-solving capacity of constitutional review are actually met in the European legal space.