Introduction to Constitutional Law and Courts

Constitutions and Courts: An Overview

• Constitutions are critical for understanding governance structures and citizen rights. They outline government power, institutions, and citizen rights.

• Courts ensure constitutional principles are followed. They interpret and apply laws for fairness and equal application.

• A constitution isn't a static document. It defines government goals but has gaps between ideals and practice. Constitutions vary significantly in length and efficacy; there's no fixed template.

• Constitutions set out a power map, specifying political principles and rules. Understanding governments entails knowing these rules and how they're changed or amended.

• Courts serve to determine constitutional validity. Analyzing the relationships between supreme courts, constitutional courts, and judicial activism is crucial.

• Courts play roles in recruitment, tenure, and judicial independence. The systems of common law, civil law, and religious law are key to understanding how courts interact with constitutions.

• Authoritarian regimes often use constitutions as facades or largely ignore them.

The Character of Constitutions

• Most constitutions share common elements, usually beginning with a preamble outlining state ideals. The core lays out governmental structure and how officials are chosen. A bill of rights details citizen rights, and an amendment procedure is usually described.

• Constitutions are either codified (one document) or uncodified (multiple sources). Codified constitutions tend to be more easily referenced, while uncodified constitutions often contain elements of multiple sources, including statute law, common law, European law, and customs.

• The rule of law prioritizes laws over arbitrary power. Legal systems, and their applications, differ significantly between countries.

• Constitutions, while often broad in their initial goals, provide framework for policies, powers, rights, and government structures.

Durability of Constitutions

• Constitution longevity is often measured, but quality, not age, is arguably more important.

• Constitutions create space for judicial review to enforce and uphold specified rights and freedoms. A degree of idealism exists within all constitutions, but these claims often can't be verified empirically, especially concerning their practicality.

• A gap often arises between stated constitution ideals and real-world practices. Comparing what is said to what happens in practice is key to assessing constitution effectiveness.

Judicial Activism

• Judicial intervention in public policy has increased since 1945. This is seen as a shift from judicial restraint.

• Four key factors explain this trend: The decline of the left has afforded courts a greater scope, the emphasis on regulation demands court intervention, global legal norms provide bases for judging national laws, and prestige continues for judicial structures.

Constitutional Courts

• Specialized courts, often standing apart from ordinary courts, exist in many countries. They focus on constitutional issues.

• The function of judicial review involves evaluating government actions against the constitution.

Comparing Supreme Courts and Constitutional Courts

• Supreme courts usually take a concrete review approach by evaluating actions in the context of specific cases.

• Constitutional courts favor abstract review, offering advisory opinions regarding laws' constitutionality without needing a specific case example.