Journal Article

Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court

Michel Rosenfeld

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 4, issue 4, pages 618-651
Published in print October 2006 | ISSN: 1474-2640
Published online October 2006 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mol027
Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court

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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.

Journal Article.  14983 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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