1. Comparative constitutional law

2. Theme 3 constitutional interpretation constitutional review

3. Who interprets the constitution?
Who decides whether an act is constitutional or not?

4. Judicial constitutional review: arguments in favour
separation of powers: checks and balances
have an extra (judicial) check on the lawmaker
judges are trustworthy because they are not elected and can therefore have a more objective and professional view
citizens need to be able to rely on their constitution, which should always prevail over other laws

5. Judicial constitutional review: arguments against
separation of powers: courts should apply the law, not second-guess it; the legislature has already balanced different interests.
democracy: majority decides (‘the countermajoritarian difficulty’)
legal certainty demands that statutes stay in force.
judges are not elected by the people and should therefore not have too much power

6. Constitutional review: Marbury v Madison
Constitution is defined as highest law of the land, judges take an oath to uphold it
Constitution derives directly from the will of the people
It would lose all practical effect if Congress could derogate from it via simple legislation
The complicated amendment procedure and the very drafting of a Constitution itself would be pointless if simple statutes suffice to deviate from it
Legislation is only possible thanks to the Constitution
Statutes can only have authority if made in pursuance of the Constitution (Art.6)
Judges must solve disputes between parties by applying the law; if the relevant law is in conflict with the Constitution, the latter overrides the former

7. The spread of judicial constitutional review of legislation
US: 1803 Marbury v Madison
Europe:
1920 Austria
1949 Germany, Italy
1958 France
Outliers: The Netherlands, the UK

8. Judicial constitutional review: modalities
centralized (D) v. decentralized (US)
abstract v. concrete
ex ante v. ex post
strike down/declare void/annull v. disapply/ set aside v. admonitory decisions

9. Monist systems: the Netherlands and France
Judicial review of compatibility of legislation with international treaties
Monist systems: the Netherlands and France
Dualist systems: UK and Germany