The Dilemmas of Constitutional Courts and the Case for a New Design of Kelsenian Institutions
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The Author(s) 2020
PABLO CASTILLO-ORTIZ*
THE DILEMMAS OF CONSTITUTIONAL COURTS AND THE CASE FOR A NEW DESIGN OF KELSENIAN INSTITUTIONS
(Accepted 19 February 2020) ABSTRACT. Legal and political controversies persist about the performance of Kelsenian-type constitutional courts in democratic systems. One of the reasons is that the design of these institutions cannot easily accommodate simultaneous but conflicting demands for the strong protection of democracy and human rights, judicial independence and constitutional restraint. Challenging the dominant approach to the design of contemporary constitutional courts, this article proposes a new way to balance these three values through reforms to the structure of Kelsenian institutions. The proposal seeks to institutionalize constitutional restraint, embedding it into courts’ internal functioning rules while, concurrently, emancipating constitutional judges from political control through a reform of appointment procedures. It is argued that the combined effects of these two reforms will produce constitutional courts that are more independent and able to protect the core elements of a democratic political community while, at the same time, increasing constitutional deference to the democratically elected legislator. I. INTRODUCTION
Constitutional courts are today recognized as central institutions in democracies all over the world. Where they exist, they are often seen as the ultimate guarantee for the protection of the democratic system of government and the culture of human rights that lies at the core of liberal political communities. In addition, however, despite the high purposes they serve, constitutional courts are often
PABLO CASTILLO-ORTIZ
surrounded by controversy and criticisms. Constitutional courts are frequently dismissed as politicized institutions that simply follow the instructions of their appointers.1 At other times, constitutional judges are accused of being activists that pursue their own policy goals under the guise of defending the constitution.2 Courts entrusted with powers of constitutional review have even been accused of being inefficient and unfit for their very purpose of defending human rights or democracy.3 All these criticisms are different and, to some extent, contradict each other, but all of them have damaging effects on the prestige and reputation of these institutions. Constitutional courts can be defined as judicial-type organs that, in a political system, have a monopoly on the assessment of the constitutionality of legislation and the power to invalidate laws and statutes that do not conform to the constitution. In this regard, they are central to the idea of ‘neo constitutionalism’.4 They are often called ‘Kelsenian courts’ because they follow the model of the Austrian Constitution of 1920 in whose creation the eminent jurist Hans Kelsen had a prominent role. As an alternative to the US model of diffuse review, Kelsen’s original idea was for a court that could ensure the uniformity of the assessment of the constitutionalit
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