This contribution provides a selection of works that have dealt with the Constitutional Court. It includes monographs, contributions to collective works and articles from scientific journals ...structured according to the general aspects of constitutional jurisdiction, the composition and organisation of the Constitutional Court and its functions, the control of constitutionality, conflict resolution and the constitutional appeal, after a preliminary note.
Since the French Revolution, the French concept of the separation of powers has been dominated by mistrust of judges and confidence in the law. It was against this complex background that the ...Constitutional Council was created in 1958 and has developed over the last 65 years, culminating in the introduction of a constitutional review of enacted legislation. By virtue of this history, the organization, composition and perception of the Constitutional Council remain predominantly political, despite progress towards greater "judicialization". The challenge for the Constitutional Council is therefore to try to overcome these constraints of the past, in order to fully fulfil its role as a counterweight and guardian of rights and freedoms, for example in times of crisis or to resolve environmental issues. In the future, the Constitutional Council will inevitably be confronted with social emergencies and the question of the effectiveness of social rights, as well as the consequences of scientific progress and new demands concerning, for example, artificial intelligence, algorithms, animals or robots.
The Italian Constitutional Court (ItCC) has shown a recent trend towards a "re-centralization" of constitutional review. This inclination represents the Court's attempt to "regain" the space that it ...had conceded to both national and supranational judges, but it also lies within a wider perspective, which includes the legal, political, cultural, and social context within which the Court works. In fact, although the national rules regulating the ItCC's functions remain unaltered, the latter's role seems nevertheless to change across time, thus suggesting that change occurs elsewhere. In other words, as the context changes so do the Court's role, its case-law, and its jurisprudential practice. The second thesis the Author emphasizes is the idea that the context deeply affects the development of the ItCC's doctrines. An understanding of the past becomes helpful to comprehend both the present and the dynamics that underlie the Court's relationship with the legislator, ordinary judges, and the doctrine. An overview of the past is also useful to highlight that the ItCC's peculiarities surfaced from the very beginning of its experience, and that it was through those same characteristics that the Court strengthened its action and role. Although the national rules regulating the Court's functions remain unaltered, the latter's role and doctrines seem nevertheless to change across time: this is because it is the context that changes. The first and second thesis come together and merge into the third and final one, which conveys the idea that the judicial seasons' diversities, as well as the doctrines' evolutions across time, reflect the ItCC's constant attempt to board as much legitimization as possible. Although it is still not possible to fully grasp the achievements produced by the judicial season of "re-centralization" that is still under way, it is fair to say that the Court has proved to be not merely a sentinel that guards the borders between functions and powers, but rather a body that is fully merged within the context, greatly influenced by it and deeply concerned with keeping constitutionally sound and efficient relations among powers. E or what concerns its relationship with political discretion, the evolution of its doctrines has opened the door to possible conflicts with the legislator, as well as with ordinary judges and the E U legal order; however, these frictions have always existed and they have repeatedly surfaced in the history of the Italian legal order.
Por some years now, in some European countries the decline in the quality of laws has come to be perceived as a threat to the rule of law. For this reason, some constitutional courts have abandoned ...their usual self-restraint in the review of defects in legislative technique in order to carry out a more intense control in this regard. Thus, in Germany, France and Italy, on the basis of very general constitutional provisions, the constitutional courts use parameters such as comprehensibility, accessibility and clarity of the laws, and in more recent years declarations of unconstitutionality have become relatively common. This paper focuses on examining the constitutional jurisprudence on the principle of legal certainty explicitly enshrined in the Spanish Constitution, with the main objective of assessing whether our Constitutional Court also joins this tendency to control the lack of quality of laws more strictly.
Since its enactment in 1948, the Military Selective Service Act (MSSA) has required men, but not women, to register for a potential military draft. The MSSA previously withstood constitutional review ...when, in 1981, the U.S. Supreme Court upheld the statute’s sex-based classification under the rationale that the purpose of the MSSA was to raise combat troops in the event of a military crisis. Because women were not allowed to participate in combat, the Court held that the statute did not need to extend the registration requirement to women. In 2013, however, the Department of Defense eliminated all combat restrictions on women. With that policy change, the rationale for the Supreme Court’s earlier decision collapsed. Since the change allowing women to participate in combat, the MSSA has come under renewed scrutiny, with a 2019 federal district court decision holding that the statute violates the Fifth Amendment’s Due Process Clause. That decision was subsequently reversed by the U.S. Court of Appeals for the Fifth Circuit, but the Fifth Circuit declined to consider the merits of the district court decision and, instead, based its reversal solely on the rationale that only the Supreme Court may reverse itself. In addition, a blue-ribbon commission established by the U.S. Congress recommended in 2020 that lawmakers amend the MSSA to extend the registration requirement to women. This Article provides background relating to the current controversy over whether to amend the MSSA to require women to register for the draft. It argues that the existing sex-based classification in the statute fails to advance the MSSA’s purposes. Moreover, the sex-based classification relies on archaic generalizations about the role of women, is a detriment to America’s national security,and undermines sex equality. The Article contends that the MSSA violates the Fifth Amendment and should be amended by Congress.
Globally, there was a dramatic and disproportionate increase in caseloads in the second half of the twentieth century due to the expansion of human rights jurisprudence and legal awareness among ...citizens. This in turn, affected the quality of justice in the Apex Court of every country involved in the process of constitutional review. It was found that there cannot be any generalization in designing a Constitutional Court and it all depended on the constitutional and legal history of that particular nation. In many countries, the legislature and executive brought timely reforms to keep the Apex Court free from backlogs, but some countries, even today, are reeling under the pressure of unresolved cases. India is one among them and of late, the discussion about the National Court of Appeal (NCA) as a solution to this problem has gained momentum. This paper analyses the feasibility of establishing the NCA, along with measures that can be adopted by India, in tackling the mounting arrears of cases in Courts, following the American model of review such as U.S., Canada, Japan, and Brazil.
The practice of judicial activism, though not formally defined within the jurisdiction of the Constitutional Court (MK), is implicitly recognized as an integral element of independent judicial power. ...The importance of this independence is underscored as a fundamental necessity for the preservation of law and justice. This research utilized a normative juridical methodology, incorporating conceptual, comparative, and case-based analysis. The study findings reveal that judicial activism, as practiced within the Constitutional Court, is underpinned by independent judicial authority. Moreover, this practice aligns with the tenets of progressive legal doctrines, which not only acknowledge the significance of codified legal provisions but also endorse legal innovations for the pursuit of justice. The practice of judicial activism within the Constitutional Court is indispensable for reinforcing the principle of checks and balances. The subjective and abstract nature of judicial activism, however, necessitates objective validation through the principle of virtue jurisprudence.
PDF
