Reality and potential of behavioral constitutional review: a comparative research

Abstract

Constitution does not just contain simple general phrases, but directly regulates the governmental relations and establishes specific procedure for usage of power. Therefore, this usage cannot be “this or that” – it can only be such as is prescribed or allowed by the Constitution. This formula is designed to minimize the abuse of power, arbitrariness, and inadequate invasion of individual freedom. However, the established procedure would be no more than what Sartori called “a dead letter” if constitutional provisions were not supported by enforcement safeguards. Many legal orders, including almost all developed democracies, have such specialized mechanisms of constitutional review, which cover all types of governmental activity, whether it is the will of the legislature, executive acts, or judgments of courts. Citizens, as well as subjects of political arena, are provided with effective constitutional remedies. In other States, including Russia and some post-Soviet systems, only statutes (mostly laws) are subject to constitutional review. Actions and casual decisions of authorities can only be reviewed for compliance with the statutes in courts of general jurisdiction (administrative procedure). This article is an attempt to prove the existence of a separate body of constitutional misconduct, i.e. such possible manifestations of power, illegality of which is often difficult even to reveal in administrative proceedings due to the issues of a truly constitutional nature, let alone the possibility of curbing such acts by ordinary measures. The first paragraph presents an original classification of constitutional misbehavior – from a violation of a direct or implicit constitutional provision to a breach of the constitutional oath or citizens’ legitimate expectations. The second paragraph supports the theoretical dogma with the empirical basis, considering foreign practice of constitutional review. Real actions of the senior government officials of the United States, Germany, Austria, Italy, Australia, Lithuania, South Africa, etc. were held at various times as unconstitutional. The third paragraph is a discussion on the problem of administrative process’ capacity to ensure that the behavior of government is constitutional and to implement the goals of constitutionalism. Take, for instance, just some examples of constitutional misbehavior: religious-biased and intolerant speeches on the part of officials, the excess of “implied” powers, the unpredictable enforcement acts and executive decisions etc. There is no doubt that such misconduct is dangerous for constitutional democracy. But the real doubt is the ability and competence of administrative courts to judge such conduct on the merits of constitutionality. Research material shows that the legality of acts does not always mean their constitutionality, while the unconstitutionality of acts does not always mean the unconstitutionality of their statute ground. Thus, the author makes a valid conclusion that the power of behavioral constitutional review is an immanent characteristic of limited government and should be separated from statutory constitutional review.