The American and European
Models of Constitutional
Review
Alec Stone Sweet
Yale Law School
Three tasks for today:

1. Contrast the American Model of Judicial
Review with the European Model of
Constitutional Review.

2. Examine the three main “modes” of
constitutional review found in the European
model: abstract review, concrete review, and
the individual constitutional complaint.

3. Describe how “abstract review” operates in
the United States, despite the “case or
controversy” requirement.
The American Model

Article 3, Federal Constitution of the U.S.:
‘The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution; the Laws of the
United States . . . [and] . . . to Controversies to which
the United States shall be a party; to Controversies
between two or more States; between a State and
Citizens of another State; [and] between Citizens of
different States [. . .].
This is the basis of the “case of controversy” rule governing
“justiciability” for American courts.
“Advisory opinions” are prohibited.
Marbury v. Madison (1803): established the power of
(constitutional) judicial review. What is judicial review?
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American judicial review:
Authority is decentralized: all
judges possess the power to annul
a statute on the grounds that it
violates the constitution law.
The Supreme Court is a court of
“general jurisdiction: it is the
highest court of appeal in the
legal order, for all issues of law,
not just constitutional issues.
Judicial review is defensible under
prevailing separation of powers
doctrines to the extent that it is
“case or controversy” review.
Judges possess review authority
because their legal duty is to
resolve legal “cases,” some of
which will have a constitutional
dimension.
Judicial review is understood to be
“concrete,” in that it is exercised
pursuant to ordinary litigation.
Abstract review decisions look
suspiciously like “advisory
opinions,” which are prohibited
under American separation of
powers doctrines.
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European constitutional review:
Authority is centralized: only the
constitutional court may annul a
statute as unconstitutional.
Judicial review of statute is
prohibited.
The Constitutional Court’s
jurisdiction is restricted to
resolving constitutional disputes.
The ordinary courts handle civil
suits and criminal matters.
Review powers are defensible
under separation of powers
doctrines to the extent that it is
not exercised by the judiciary, but
by a specialized “constitutional”
organ, the constitutional court.
Constitutional review is typically
“abstract”: the review court does
not resolve “concrete cases”
between two litigating parties, but
answers constitutional questions
referred to it by judges or elected
officials. Judicial review looks like
a “confusion of powers,” since the
judges participate in the legislative
function.
American Judicial Review

Judicial Review: review is exercised pursuant to a legal
“case” being brought before a judge.
A “case”: a legal dispute brought to a court in the form
of litigation between two parties who have opposed
interests in the outcome of the dispute.
“Standing” and “mootness” are ways for the courts to verify
concreteness. American courts are expected to deny
standing to parties that fail to show some degree of
“direct interest” in the review of a law.
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Review is activated once one of the parties pleads the
constitution, such as a right. Any court can, at the
behest of either party, void a law as unconstitutional if
that court determines that the statute violates the
constitution.
European Modes of Review
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Abstract Review:
Abstract review is initiated when elected officials – typically
the parliamentary opposition, the executive, or the
government of a regional of federated state – refer a law
for review after the law has been adopted by the
legislature, but before it has been enforced.
This mode of review is called “abstract” because it
proceeds in the absence of a concrete judicial case,
since the law has yet to be applied. The review court
compares the constitutional text and the statute, in the
abstract, to determine if the latter conforms to the
former.
Abstract review is also called “preventive review,” since it
allows the system to filter out unconstitutional laws
before they can harm people.
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Concrete Review:
Concrete review is initiated when an ordinary
judge, presiding over litigation in the courts,
refers a constitutional question – for example, is
law X, which is normally applicable to the
dispute at bar, unconstitutional? – that the
constitutional court must answer. The referring
judge then resolves the dispute with reference
to the constitutional court’s ruling. This mode of
review is called “concrete” since it is related to a
concrete case already underway in the ordinary
courts. In comparison with American judicial
review, however, concrete review still looks more
“abstract,” in that the constitutional court does
not preside over, or settle the case, which
remains the responsibility of the referring judge.
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The Constitutional Complaint:
Individuals may activate the constitutional court
directly by sending to the judges a constitutional
complaint, which alleges that their rights have
been violated by a public authority, after judicial
remedies have been exhausted or are not
available.
Most constitutional complaints are, in effect,
appeals of judicial decisions. Thus: concrete
review and the complaint often work together in
a long extended process. Example: Farmer Fritz
and the expropriation of his pasture to build an
Autobahn in Germany.
Table 9.1: Regional Distribution of Models
of Constitutional Review in 2000
Europe
Africa
Middle East
Asia and SE Asia
North America
Central America
South America
Caribbean
CJR
5
12
2
18
2
3
3
8
EM
31
29
5
13
0
3
4
0
Totals
53
85
Mixed Other None
3 (1) 1
2
1
6
3
0
3
1
2
11
0
0
0
0
3 (1) 0
0
5 (3) 0
0
0
1
0
14
22
6
Abstract Review
Abstract review: the pre-enforcement
review of statutes.
 Abstract review is also called “preventive
review,” since its purpose is to filter out
unconstitutional laws before they can harm
anyone.
 In Europe, abstract review is politicallyinitiated. Typically, executives,
parliamentary minorities, and regions or
federated entities in federal states, possess
the power to refer laws to the court.
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Abstract Constitutional Review in the U.S.
How does abstract review of statutes in America
happen?
The technical answer: “facial challenges” happen
when:
(a) plaintiffs file a motion for “injunctive” or
“declaratory” relief from the application of a
law on the grounds that it would injure them in
some significant way. Such motions are filed
immediately after a law is adopted but before
it is applied.
(b) plaintiffs file a “facial challenge” directly,
pleading the first amendment.
Injunctive or Declaratory Relief
The doctrine:
Judges will give relief where (a) a plaintiff’s constitutional
rights are at issue, (b) the plaintiff is likely to prevail on
the merits, and (c) the plaintiff may suffer irreparable
injury if relief is not granted.
Major examples: abortion.
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California Supreme Court (1997): American Academy of
Pediatrics, et al. v. Lungren. Online at:
http://caselaw.lp.findlaw.com/data2/californiastatecases/
s041459.doc
Facial challenge brought by, among others, American
Academy of Pediatrics, the California Medical Association,
the American College of Obstetricians, and Planned
Parenthood of San Francisco
Facial Challenges
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Developed first in the free speech area in the 1940s:
allows individuals whose speech rights might be
affected if a law is enforced to sue to have the law
reviewed as to its legality under the constitution,
and groups to plead the rights of third persons.
In first amendment litigation, for the government to
win, it must show that the law was “narrowly
tailored” to achieve a government purpose, and that
the law won’t have a substantial “chilling effect” on
speech.
Example: Annulment of the Communications Decency Act,
U.S. Supreme Court in Janet Reno v. the American Civil
Liberties Union (1997), online at:
http://www.law.cornell.edu/supct/html/96-511.ZO.html.
Issue: Law prohibited making available to minors “patently
offensive” and “indecent” words or images.
Facial challenge brought by, among others, American Civil
Liberties Union, Human Rights Watch, the National
Writers Union, Stop Prisoner Rape, AIDS Education Global
Information System, Queer Resources Directory, Planned
Parenthood of America, American Library Association,
America Online, American Booksellers Foundation for Free
Expression, Citizens Internet Empowerment Association,
CompuServe, Families Against Internet Censorship, Health
Sciences Library Consortium, Magazine Publishers of
America, Microsoft, Netcom On-Line, Newspaper
Association of American, Opnet, Prodigy, and Society of
Professional Journalists.
Abstraction
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Almost all important Supreme Court
decisions are abstract in the sense of
being about general (rather than
particular) questions of law and policy,
and generate prospective rather than
purely (retrospective) law-making effects.
An “oracle” of the law or a third-party
“dispute resolver” or both?