![handle is hein.journals/indjcstd5 and id is 1 raw text is:
Classifying Systems of Constitutional Review: A Context-Specific Analysis
SAMANTHA LALISAN*
Access to the court is perhaps the most important ingredient in judicial power,
because a party seeking to utilize judicial review as political insurance will only be
able to do so if it can bring a case to court.
INTRODUCTION
Europe's experience with democratically elected fascist regimes leading to World War II
is perhaps one of the most important developments for the establishment of new constitutional
democracies. Post-war constitutional drafters sought to establish fundamental constitutional rights
and to protect those rights through specialized constitutional courts.2 Many of these new
democracies entrenched first-, second-, and third-generation rights into the constitution and
included provisions to allow individuals access, direct or indirect, to the constitutional court to
protect their rights through adjudication. In the wave of constitutionalism in post-war Europe,
constitutional courts were seen as protecting democracy.3
One of the attractions of specialized constitutional courts,4 as opposed to the American
model of constitutional review in which any court can decide questions of constitutionality,5 is the
implied elevation and importance of the constitution. That is, by creating a special body that
* Samantha Lalisan, Juris Doctor, 2019, Indiana University Maurer School of Law; Bachelor of Arts, 2016, UCLA.
1 ANDREW HARDING, PETER LEYLAND, & TANIA GROPPI, CONSTITUTIONAL COURTS: FORMS, FUNCTIONS AND
PRACTICE IN COMPARATIVE PERSPECTIVE IN CONSTITUTIONAL COURTS: A COMPARATIVE STUDY 20 (Andrew
Harding & Peter Leyland eds., 2009).
2 Enrique Guill6n L6pez, Judicial Review in Spain: The Constitutional Court, 41 LOY. L. REV. 529, 530 (2008)
(These countries simultaneously reintroduced constitutional democracy . .. [t]he constitutional courts in these
concentrated-control systems are considered fundamental to the political stability of their respective constitutions
because they were, to a large extent, responsible for the social acceptance of these texts.).
3 TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 2 (2003).
4 Constitutional courts are specialized courts with authority to adjudicate questions of constitutional interpretation
or to review legislation and that are separate from the judiciary. John Ferejohn & Pasquale Pasquino, Constitutional
Adjudication: Lessons from Europe, 82 TEX. L. REV. 1671, 1672 (2004); ALEC STONE SWEET, CONSTITUTIONAL
COURTS, OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 2 (2012). The founding intellectual ancestor
of constitutional courts is Hans Kelsen, the first Chief Justice and designer of the Austrian Constitutional Court. Id.
Constitutional Courts emerged more than a century after the American model of constitutional review was
established. See Lech Garlicki, Constitutional Courts Versus Supreme Courts, 5 INT'L J. CON. L. 44 (2007).
1](ViewImageLocal?handle=hein.journals/indjcstd5&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most