Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts

Abstract

Constitutional adjudication is older and more entrenched in the United States than in Europe. Moreover, because in Europe such review is typically entrusted to a special court that engages to a large extent in abstract review whereas in the U.S. constitutional adjudication is decentralized and concrete, it would seem that European review should be more political than its American counterpart. Paradoxically, American constitutional adjudication has been attacked much more as being political. Moreover, the countermajoritarian problem, which plays a prominent role in the U.S., plays virtually no role in Europe. This paper explores these differences in terms of the contrasts between civil law and common law constitutional adjudication, differences in conception regarding the rule of law, the Rechtsstaat, l'Etat de Droit and the constitution as law, and regarding constitutional interpretation and originalism - important in the U.S. but not in Europe. The paper examines whether the different conceptions concerning legitimacy of constitutional adjudication and concerning the role of politics in judicial review are primarily due to structural or to contextual factors.