The Constitution is the supreme law in the hierarchy of norms laid down by Hans Kelsen. This poses a problem in the domestic hierarchy of norms by raising a question about how to enforce the superiority of the Constitution, particularly with respect to the law. Thus, the difficulty faced by the founder of the constitution lay in the implementation of techniques to enforce that superiority.
This technique is called constitutional review, that is to say, a mechanism that entrusts a body or group of bodies, the power to verify that legal norms are subordinated in accordance with the legal standard laid down by the supreme Constitution. This practice faced strong opposition in France for a long time (on the principle that the law is an expression of general will and we cannot go against that because giving the judge such control is contrary to the separation of powers).
Thus, this control appeared first in the United States, though it was not expressly provided for in the Constitution of 1787. It was established in 1803 by the Supreme Court through the famous case, Marbury vs. Madison. France finally succumbed to the implementation of this control in 1958 after several adverse experiences (Imperial Senate, the Constitutional Committee of the Fourth Republic).
The development of constitutional review was undertaken for technical reasons, i.e. the respect for the hierarchy of norms, as well as a characteristic of the progress of the rule of law, and a necessity to guarantee fundamental rights. However, this control is in logical opposition to the liberal democratic logic that many constitutions necessarily contain, including the French and U.S. Constitution. These are, however, dependent on a very different control procedure.
How do the two conflicting constitutional checks, in France and the United States, occur within their boundaries? The constitutional review practiced in France and the United States represents two typical yet, opposite forms of this mechanism. However, these two controls are united in their boundary, which ensures a distancing of democratic logic in Constitutions.
Tags: Hans Kelsen, Imperial Senate, the Constitutional Committee of the Fourth Republic, U.S. Constitution,
[...] two typical and antagonistic forms of control The procedure of control in the United States is controlled by way of exception, where any litigant, in a regular trial, seeks to challenge compliance of an act which is likely to be applied with the Constitution. Technically, the defendant raises a collateral issue. This issue is characterized as an exception of unconstitutionality in the American system. Indeed, the judge before whom the exception is raised himself analyzes the question. The mechanism of constitutional review as a defense is supposed to be democratic, insofar as it is raised by individuals and not by political elite. [...]
[...] Thus, in the United States as in France, this phenomenon is consistent with the constitutional review itself, and its development represents a major consequence of the mechanism of constitutional review, and is a limit of the latter. Indeed, a phenomenon like a "government by judges" has its limits, due to the legitimacy of judges as the representatives of the sovereign people. The control is indeed most often assigned to a judge. It appears as the highest authority of the state, which calls into question the organization of government intended by the Constitution, which entrusted this authority to elected officials. [...]
[...] However, the critics and limitations that created them, converge on the highlighting of a phenomenon peculiar to constitutional review, government of judges" which induces and shows the inconsistency of this mechanism with the Democratic ideal A Control of constitutionality government of judges " A Judicial review of constitutionality may present the risk of leading to a "government of judges". The courts will thus become a substitute for political representation and this would be in opposition to the fundamental principles that form the basis of social life. [...]
[...] The constitutional review practiced in France and the United States represents two typical yet, opposite forms of this mechanism. However, these two controls are united in their boundary, which ensures a distancing of democratic logic in Constitutions. I Two representations of constitutional review, and two opposing forms The constitutional review, was a phenomenon initially introduced in the U.S., and gradually became a global phenomenon. However, there are two opposing forms of control which are represented by the United States and France. [...]
[...] The people hold the power, in a democracy, and in thus the principle of all things. They decide, delegate, punish, control, and found, but cannot be judged, punished or controlled. To paraphrase General de Gaulle, in a democracy the people are the Supreme Court. However, in principle, constitutional justice against such an approach is part of democracy, since it is defined as the power given to the appointees, to assess, monitor and, where appropriate, punish the lack of compliance with the Constitution, acts of public authorities and in particular, laws passed by elected representatives of the sovereign people. [...]
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