Constitutional Review- Two Distinct Approaches

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Constitutional Review- Two Distinct Approaches


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British English

Constitutional Review- Two Distinct Approaches

“Thirty Years of Roe v. Wade: Death, Deceit, Depression” wrote the editor of the Leadership University newsletter on August 13th 2006[1]. Indeed, the Supreme Court decision that went on to legalize abortion in all fifty U.S. states is still controversial thirty-four years later. In the Netherlands, a different kind of tension can be felt regarding the constitutional review of legislation. In fact, there have been proposals to extend or abolish the limits set out by Article 120 of the Constitution, which forbids this kind of review. Therefore, it is in this paper that the main differences between the stances taken by these two countries regarding the constitutional review of legislation will be further elaborated on. This will be done by firstly looking into some background information regarding the relevant courts, such as their history and powers today. Following this, the controversy surrounding the relevant courts in the past few decades will be outlined, in order to reach a coherent conclusion regarding this important issue.

Historical Background

In the United States, it was the leading case of Marbury v Madison which gave way to constitutional review of legislation. In it, Justice Marshall had ruled the Judiciary Act 1789 to be conflicting with the Constitution, which then led to the question of what happens when the Constitution clashes with an Act of Congress. He answered by saying that those Acts of Congress would not be law anymore if they clashed with it, and that the courts are therefore bound to follow the Constitution[2]. Therefore, the fact that Article III of the Constitution granted to the Supreme Court the “judicial power of the United States” was then interpreted as meaning that the Supreme Court could carry out judicial review[3].

As to the Netherlands, a provision was included in the country’s Constitution in 1848 stating that “statutes are inviolable”[4]. As was clarified in the Van den Bergh case of January 27th 1961, the Constitution makes it clear that it is appropriate for the legislature (and not for the courts) to judge the question of which provisions in the Constitution “must be taken into account in bringing about Acts of Parliament” and how these provisions should be interpreted and applied4. However, in 1983 the original 1848 clause was rephrased into Article 120 of the Constitution. It no longer stipulated the “inviolability” of Acts of Parliament, but stated that courts were now not able to review their “constitutionality”[5].

The Courts Today

Today, important cases regarding the interpretation of the Constitution will almost always be referred to the Supreme Court of the United States. Before this takes place, the state or appeal court will examine the compatibility of the parties’ arguments with statutes in the federal Constitution. If these are found to be unconstitutional (or incompatible), they will be referred to the Supreme Court which will then carry out constitutional interpretation. The Court is able to decide which cases it wants to review. This means that the method of certiorari (or writ of certiorari) is used[6]. Certiorari is an order from a higher court instructing the lower court to “send the record of a case for review”. It has been reported that of the 6,000 certiorari petitions filed each year, the Supreme Court agrees to hear no more than 150 cases or even fewer[7]. The judgments or interpretations of Constitutional law by the Supreme Court will then be binding on the legislative and executive, as well as the state courts and the lower courts in the federal system of the United States7.

The courts in the Netherlands review cases in order to check whether the Dutch law has been applied correctly. Even though they...
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