Symposium: Constitutional Courts and their Powers – the Least Dangerous Branch?

Anna Gamper

University of Innsbruck, Austria

Long before the “invention” of specialized constitutional courts, Alexander Hamilton wrote one of the best-known passages of the Federalist Papers: “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution […] The judiciary […] has no influence over either the sword or the purse […]. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Federalist No 78). Accordingly, Hamilton classified the judiciary as the “weakest” of the three departments of power. Even though individual oppression might occasionally rise from the courts, the general liberty of the people could never be endangered from that quarter as long as the judiciary remained truly distinct from both the legislature and the executive.

According to Hamilton, the first danger stemming from the judiciary is its union with the other two branches and its being “in continual jeopardy of being overpowered, awed, or influenced” by them unless judges were tenured. Concerning constitutional courts, tenure of office is, however, not the only pre-requisite to avoid that danger. Judicial independence in constitutional courts relies on a combination of transparent (although, which seems almost unavoidable, not unpolitical) appointment procedures, high standards of qualification and incompatibility rules. Tenure of office might, on the contrary, prevent a “diachronic” separation of powers, although the period of constitutional judges must not be too short either.

Later in Federalist No 78, Hamilton also discerns another danger in exactly the opposite direction: “[if courts] should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” Here, the danger stems from judges that interpret the law at will, contrary to the intentions of the legislature, because they confuse independence with arbitrariness. This danger has also been increasingly associated with constitutional courts, not only vis-à-vis the other two branches but even vis-à-vis other courts. A recent example is the German Federal Constitutional Court (BVerfG, Judgment of the Second Senate of 5 May 2020 - 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15, 2 BvR 980/16) which accused the European Court of Justice of acting ultra vires out of “objective arbitrariness” beyond any acceptable interpretive methods, whereas the European Court of Justice stresses that it has exclusive competence to interpret EU law.

Hence, even in Hamiltonian thought, courts are not “harmless”. They are only “the least dangerous” of the three branches. But perhaps constitutional courts may be stronger and therefore more dangerous (or less “less dangerous”) than ordinary courts because of their peculiar powers. Their “dangerousness” here, however, positively serves the purposes of a constitutionally limited government, and their “powers” are conceived as a juridical category that relates to the variety of functions deployed by constitutional courts.

Not all constitutional courts have the same powers. The judicial review of laws (and other legal acts) and the power to review human rights violations, which may overlap to some extent, are considered as their core functions. Still, other powers may be as important in certain contexts, for example, when it comes to the legal challenge of the outcome of elections or the solution of power conflicts in federal systems. It is not only the sheer quantity or type of powers, moreover, but certain qualities attached to them that determine their strength: the power to review laws will vary in strength depending on the kind of locus standi, the reviewing stage (ex-post or ex-ante scrutiny) and the (retroactive, erga omnes etc) effect of judgments. If the power to review laws includes the power to review constitutional amendments, this will considerably strengthen constitutional courts. However, even this power does not exclude the possibility that their authority will be declared ultra vires by another branch. Even worse, they might be overruled by actual measures, using, in Hamiltonian terms, the “sword” or the “purse”.

The recent pandemic and ensuing emergency in many states shows that the strength of constitutional courts also relies on the temporal question of when constitutional courts are approached and at which moment they can be expected to deliver a judgment. On the one hand, this concerns legislative processes in which constitutional courts are asked for a pre-legislative scrutiny. Several constitutional courts across the world have such powers, but opinions delivered by constitutional courts may not be binding in all cases. Therefore these non-binding decisions do not stop lawmakers from enacting the envisaged law, even though they may nevertheless have a strong influence.

On the other hand, ex-ante scrutiny might also be exercised in individual complaint procedures. In such cases, the individual asks for a preliminary injunction that safeguards his or her rights until the court has made a final decision. Furthermore, the court may grant such an injunction suo moto when it regards this as necessary to safeguard the complainants’ rights. Although these decisions do not prevent a law from coming into force, the concerned individual is nevertheless (at leat temporarily) protected even at a stage where the law is in force (and will perhaps remain so). However, it is important to note that not all constitutional courts have this power, and even where this power applies, its dimension varies from case to case.

In instances where an ex-ante review is missing, it could be compensated for by fast-track measures that accelerate the constitutional court’s reviewing procedure during states of emergency. These measures range from extraordinary sessions to pilot judgments, technical possibilities for virtual internal discussions and circular voting procedures. However, these measures should not encourage judges to deal with cases superficially or arbitrarily.

Hamilton examined the judiciary from the perspective of the “external” separation of powers. He conceived the judiciary as the third among the three branches and its powers as directed vis-à-vis those of the others. However, also the “internal” separation of powers, here the separation of powers within the judiciary, is relevant: how “dangerous” or “weak” are constitutional courts vis-à-vis other courts?

Also the legislature or the executive may have an internally separate structure allowing for checks and balances: this may happen because of bicameralism, for reasons of multi-level governance or because of political tensions between majorities and minorities in parliament. For instance, if a government has no constitutional majority in parliament, it will have a slim chance of undermining a constitutional court by a constitutional amendment. When one tier’s government challenges the other tier’s laws or a parliamentary minority the laws enacted by the majority, the chances for activating constitutional courts and judicial review will be stronger. In this scenario, the tension is not just between the legislature and the constitutional court, but concerns different levels and powers that face each other from both an external and internal perspective. From this perspective, constitutional courts could even be supported by or themselves support “components” of the other branches which strongly relativizes the classical model of monolithic branches and suggests a much more pluralistic view of the power of constitutional courts.

Constitutional courts are surely neither the least dangerous among courts nor can they generally be considered less dangerous than the other branches. But their “dangerousness”, which might be desirable to protect the constitution efficiently (if not in the way anticipated by Hamilton), depends on many constitutional and non-constitutional factors. The complexity of these factors becomes clearer during emergencies.

Anna Gamper is a Professor of Public Law at the University of Innsbruck, Austria.

Suggested citation: Anna Gamper, ‘Constitutional Courts and their Powers – the Least Dangerous Branch?’ IACL-AIDC Blog (15 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/15/constitutional-courts-and-their-powers-the-least-dangerous-branch