Compare And Contrast Judicial Review Vs American Judicial Model

Nowadays, the most diffused constitutional models of judicial review are the American and the European. Both these Constitutional models should be the manifestos of democracy and sovereignty of the people, but it is easily to deny this statement. In fact, we have to take into account that constitutions can be also negative for the consolidation of democracy. For instance, in many cases the authoritarian regimes use the constitution as support for them. Although, a democratic system would be against a certain type of judicial independence since democracies promote a popular participation, judicial review represents a fundamental organ for the protection of human rights and civil liberties. The aim of this essay is to compare the American and
Starting from the institutional structure, the American system is decentralized since all the ordinary courts can declare an act unconstitutional. On the other hand, the European system is centralized because only a single Court, usually called “Constitutional Court”, can exercise judicial review. Although the American System could create a confusion of powers. On the contrary, in terms of democracy, we might think that the American model giving a division of powers could be more democratic. However, some implications suggest different conclusions. For instance, some theorists argue that the American system is not democratic since the members of the courts are not
In fact, one argument say that, in a large number of the cases where the Courts judge an act unconstitutional, some minority was defended against the majority. On the other hand, the term democracy involve the predomination of the majorities and their representatives not the minorities. Nevertheless, another argument state that both the courts are created to protect fundamental rights such as the human and civil rights. In fact, we can noticed that many States had seen the affirmation of judicial review after authoritarian regimes. See, for example countries like Italy and Germany where the Constitutional Courts were introduced primary to fight Nazism and