THE CONSEQUENCES OF CENTRALIZING CONSTITUTIONAL REVIEW IN A SPECIAL COURT. SOME THOUGHTS ON JUDICIAL ACTIVISM.

I. Introduction If one examines the legal landscape of contemporary Europe, one will be struck by the institutional salience of constitutional courts. In a long evolution that started after the First World War and reached its climax after the fall of communism, most European countries have established these special courts in order to protect their national constitutions against offensive legislation.1 Europe is now clearly associated with a "centralized model" of constitutional review, where only one court has authority to strike down a law as unconstitutional, while the United States exemplifies the "decentralized model," where all courts are empowered to set aside legislation if it violates the Constitution.2 Historically, the European option in favor of a centralized model is linked to the value of legal certainty. Disagreements arise among courts if they are given the power to review the constitutional validity of legislation. These disagreements make the law more uncertain for both citizens and governmental authorities. In contrast, if only a constitutional court has the power to check legislation, no risk of disagreement among courts exists. Centralization is thought to be an efficient solution to the problem of judicial divergence.3 But quite apart from this foundational rationale of the centralized model, the decision to centralize constitutional review in a special court may have other effects (whether intended or not). In this Article, I will offer some thoughts about the consequences of this choice in connection with two questions. First, to what degree can constitutional courts avoid constitutional issues? And second, to what extent can they engage in a deferential type of review when they check legislation? My main thesis is that, other things being equal, constitutional courts are less likely to engage in these two forms of passivism than are courts in a decentralized model. Some features of constitutional courts press them in the direction of activism. I want to be clear at the outset, however, that many other factors may alter the degree of passivism or activism of courts in a given country. So, for example, in order to have a complete picture, one would need to examine the political process that a country has, the dominant cultural assumptions about the role of courts, the possible connections between the domestic courts and supranational institutions and practices, and other similar factors. These factors may reinforce or, on the contrary, work against the potential consequences of establishing a special constitutional court. My point is simply that if a country sets up a constitutional court, it introduces a vector of activism. That is, other things being equal, the country with a constitutional court will tend to have more activist judicial review. II. A "Dualist Structure" Before arguing my case, it is important to isolate some features of the centralized model that are relevant to this discussion. I propose that we say the centralized model is based on a dualist structure, for it divides the judiciary, as understood in a broad sense, into two parts: "ordinary courts" and the "constitutional court." The model assigns different tasks to each of them. To simplify, it assigns ordinary courts the "ordinary judicial function," which consists of applying legislation to decide concrete cases, while it entrusts the constitutional court with the "constitutional function," which consists of reviewing the validity of legislation under the constitution. In contrast, the decentralized American model is based on a monist structure: there is a single judicial branch which exercises the two functions at the same time. One of the potential advantages of the dualist structure is that it is possible, although not necessary, to design the constitutional court differently than ordinary courts. Thus, a more "political" procedure may be chosen to select the members of the constitutional court, while a more "bureaucratic" or strictly "professional" procedure may be followed to appoint ordinary judges. …