Comparing Constitutional Review by the European Court of Justice and the u.s. Supreme Court
Publication Date
10-2006
Journal
International Journal of Constitutional Law
Abstract
Although neither is a constitutional court, both the U.S. Supreme Court and the European Court of Justice engage in extensive constitutional review. While the European Union does not have a constitution, the European Court often engages in what amounts functionally to constitutional review, particularly in relation to the EU's quasi-federal structure. This article, comparing the two courts as constitutional adjudicators, explores the differences in style and rhetoric between the two, locating each in their respective institutional and cultural settings. It compares their approaches to interpretation as well as the source and scope of their legitimacy. Both courts have engaged in the constitutionalization of politics and seem at risk of politicizing their constitutions. The threats to their respective powers and legitimacy are, however, different. The U.S. Supreme Court is vulnerable to internal forces—the President, Congress, and national public opinion—whereas the European Court is mainly vulnerable to external forces—the member states and, particularly, the latter's constitutional courts.
Volume
4
Issue
4
First Page
618
Last Page
651
Publisher
Oxford University Press and New York University School of Law
DOI
https://doi.org/10.1093/icon/mol027
Disciplines
Constitutional Law | Human Rights Law | Law
Recommended Citation
Michel Rosenfeld,
Comparing Constitutional Review by the European Court of Justice and the u.s. Supreme Court,
4
Int'l J. Const. L.
618
(2006).
https://doi.org/10.1093/icon/mol027
