Stone Sweet 2007

SYMPOSIUM
The politics of constitutional review in

France and Europe
Alec Stone Sweet*
To the question “Is constitutional review by a Constitutional Court law or politics?”

this article responds with a survey of various notions of the “political,” providing
illustrations drawn from France and Europe and assessing Louis Favoreu’s role in
French debates on the legitimacy of review. The article elaborates a basic model of
constitutional politics, defined as lawmaking processes—legislative, administrative,
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judicial—that are mediated by constitutional norms and jurisprudence. Such politics
register the extent to which constitutional courts have accrued agency in the world of
government. Today, constitutional judges function as “positive legislators,” with
transformative effects on parliamentary governance.
Louis Favoreu is the most important figure in French public law for the whole of
the Fifth Republic (1958 to the present). Professor Favoreu was an exception-
ally skilled actor in constitutional politics. During the critical, foundational
period of the Conseil Constitutionnel’s history—1971 to 1990—he built the
scholarly infrastructure of contemporary French constitutionalism.1 He
founded, among other enduring institutions, the constitutionalist’s bible,
Grandes décisions du Conseil constitutionnel (with Loïc Philip); the dominant
center for advanced teaching, research, and publishing in constitutional law,
located at his university in Aix-en-Provence; an annual international gathering
of judges and scholars for the discussion of comparative constitutional law (pro-
ceedings published yearly, in the Annuaire international de Justice constitutionnelle
(International Annals of Constitutional Justice)); and a new journal, the Revue
française de droit constitutionnel (French Review of Constitutional Law), devoted
to the style of research he perfected and instilled in his many students. When the
left was in power, Favoreu attacked the Socialists’ legislative agenda, drafting
many of the Senate’s references (les saisines) to the Conseil Constitutionnel. And,
for the general public, he wrote regular commentaries on Conseil decisions, in
Le Figaro (a center-right daily of record) and other newspapers.
*Leitner Professor of Law, Politics, and International Studies, Yale Law School. Louis Favoreu was my friend.
He was also a colleague from whom I learned a great deal. I am grateful to the editors of I•CON for the
opportunity to revisit some of the issues that I confronted as a graduate student in France two decades ago,
when I first met Dean Favoreu. Email: alec.sweet@yale.edu
1
During this period, Professor Favoreu also wrote the (quasi-official) commentaries on constitu-
tional jurisprudence for the Revue du droit public, then a role of strategic significance.
© The Author 2007. Oxford University Press and New York University School of Law. 69
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I•CON, Volume 5, Number 1, 2007, pp. 69–92 doi:10.1093/icon/mol041
70 I•CON January 2007 Vol. 5: 69
Favoreu also staged a relentless—and ultimately successful—drive to secure

the juridical-political legitimacy of the Conseil Constitutionnel. He did so despite
the open hostility of the academy and in the face of increasingly shrill protests
of elected politicians on both the left and right. This accomplishment deserves
to be considered in terms of a wider historical and comparative context.
The French Third (1875–1940) and Fourth (1946–1957) Republics saw
the emergence of the Conseil d’État as an administrative “court”; its acc-
eptance by doctrinal authorities, with an attendant explosion in doctrinal
discourse; and the consolidation of the general principles of judge-made
administrative law. Prior to this period, the public law attracted few bright
and ambitious French jurists, a situation that gradually began to change
when the Conseil d’État asserted its independence from the ministries in the
1880s.2 Given prevailing separation-of-powers doctrines, the standing orders

of parliament were more important to the work of the legislature than consti-
tutional law;3 nonetheless, public law as a discipline, with administrative law
as its focus, had developed a respectable prominence. In my view, the Fifth
Republic witnessed a comparable sequence of events, leading to the emer-
gence of constitutional law as an important domain of politics and scholarly
activity. In the 1960s, mainstream legal scholarship dismissed the new Conseil
Constitutionnel as a “political” rather than “juridical” organ. In 1971, how-
ever, the Conseil took it upon itself to recognize, as higher law binding upon
the legislature, various rights provisions found in the preamble of the consti-
tution of the Fourth Republic. The string of decisions that followed had the
effect of incorporating a charter of rights into the French Constitution. Building
on this bid for autonomy, Favoreu mapped out the contours of a new constitu-
tional law. Along the way, he pioneered research4 on what I have called
2
The Revue du droit public was founded in 1884, not least in order to increase the political legiti-
macy of French public law. See Ferdinand Larnaud, Notre programme [Our Program] 1 REVUE DU
DROIT PUBLIC [R.D.P.] 3, 3–4 (1894).
3
The constitutions of the Third and Fourth Republics enshrined legislative sovereignty—they pro-
hibited judicial review and they neither contained charters of rights nor provided for a constitu-
tional court. Parliament could revise the constitution by majority vote. During the Third Republic,
scholars sometimes argued that parliament behaved as a kind of constitutional judge whenever it
debated the lawfulness of its own activities, which it could do under the question préalable pro-
cedure. Marcel Waline, Eléments d’une théorie de la juridiction constitutionnelle [Elements of a Theory
of Constitutional Jurisdiction], 45 R.D.P. 449 (1928). The constitution of the Fourth Republic
provided for an internal review mechanism, in the form of a Constitutional Committee, but that
body never produced a decision. See ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE 23–45 (Ox-
ford Univ. Press 1992).
4
NATIONALISATION ET CONSTITUTION [NATIONALIZATION AND THE CONSTITUTION] (Louis Favoreu ed., Eco-
nomica 1982); Louis Favoreu, Décentralisation et constitution [Decentralization and the Con-
stitution], 98 R.D.P. 1259 (1982).
Stone Sweet | The politics of constitutional review in France and Europe 71
“constitutional politics,”5 and he developed a political theory of constitutional

review designed to defend the Conseil’s legitimacy in light of its enhanced
authority over the legislature.6
On the comparative front, Favoreu, virtually single-handedly,7 brought the
French Conseil into the family of European constitutional courts,8 notwith-
standing the fact that the French system appears hardly to fit at all. The French
Conseil’s constitutional review authority is tightly restricted to the control
of parliamentary statutes, after their adoption, but before promulgation,
upon referral by elected politicians. A statute, once it has entered into force, is
immune to review by any court under French law. This arrangement is excep-
tional in Europe. The Conseil is the only European constitutional court whose
jurisdiction is limited to abstract review; it does not receive referrals of consti-
tutional questions from the judiciary (concrete review), and individuals may

not appeal to it directly (constitutional complaints). Put another way, the
Conseil is the most politically exposed, and the least juridically rooted, of
Kelsenian courts. In response, Favoreu labored tirelessly to demonstrate that
the Conseil’s case law should necessarily influence the work of France’s other
supreme courts, the Cour de Cassation and the Conseil d’État.9 The exact juridi-
cal nature of the status of the Conseil’s jurisprudence within the French legal
order is an issue that has not been settled, and I doubt that it ever will be.10
Nonetheless, constitutional rights today do play a role within the greater legal
system, which, along with the dictates of European law, has helped to free
French law and courts from the dogmas of parliamentary sovereignty.
For this symposium, the editors have asked me to respond to the following
question—“Is constitutional review by a Constitutional Court law or politics?”
To many readers of this journal, this question will seem quaint—it does to
5
ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (Oxford Univ. Press
2000); Martin Shapiro & Alec Stone Sweet, eds., The New Constitutional Politics of Europe, 26
COMP. POL. STUD. 397–420 (1994).
6
See, especially, LOUIS FAVOREU, LA POLITIQUE SAISIE PAR LE DROIT [POLITICS CAPTURED BY LAW] (Economica
1988); Louis Favoreu, La Légitimité du juge constitutionnel [The Legitimacy of the Constitutional Judge],
2 REVUE INTERNATIONALE DE DROIT COMPARATIF 557 (1994).
7
This effort was substantially aided by the Conseil itself, which modernized and began networking
with other European constitutional courts under the tenure of its president, Robert Badinter
(1986–1995), and its secretary-general, Bruno Genevois.
8
LOUIS FAVOREU, LES COURS CONSTITUTIONNELLES [CONSTITUTIONAL COURTS] (Presses universitaires de France
1986).
9
Louis Favoreu, L’apport du Conseil constitutionnel au droit public [The Influence of the Constitutional
Council on Public Law], 13 POUVOIRS 17, 17–26 (1980); Louis Favoreu, Le Droit constitutionnel, droit
de la constitution et constitution du droit [Constitutional Law, Law of the Constitution, and Constitution
of the Law], 1 REVUE FRANÇAISE DE DROIT CONSTITUTIONNEL [R.F.D.C.] 71 (1990).
10
STONE SWEET, GOVERNING WITH JUDGES, supra note 5, at 92–126.
me—and the answer obvious. Constitutional law is political law, and constitu-
tional adjudication constitutes and provokes lawmaking.
Still, defining the boundaries between “things legal” and “things political”
has obsessed French legal scholars for centuries, and it profoundly troubled
Professor Favoreu. Indeed, Favoreu’s central mission, as he himself understood
it, linked three goals: (a) to rescue the Conseil from charges that it was inher-
ently a political body, and therefore not a legal one; (b) to show that the Conseil’s
published decisions deserved to be analyzed as case law—what Europeans call
“jurisprudence” (which roughly translates as “legal doctrine”); and (c) to dem-
onstrate that the French Constitution, as completed by the Conseil’s jurispru-
dence and the doctrinal activity of scholars, had juridical (what I would call
political) effects on both the legislature and the courts. In essence, Favoreu
worked to deny that French constitutional review was simply another form of

partisan politics while asserting its necessary authority over the decision making
of other organs of government, in particular, the legislature and the courts.
This article responds to the question—“Is constitutional review by a
Constitutional Court law or politics?”—by surveying various notions of the
“political” that seem particularly pertinent to constitutional politics. I illustrate
major points with examples drawn from the evolution of constitutional law in
France and, more generally, across Europe. A basic model of constitutional
politics will emerge as the discussion proceeds. I define constitutional politics as
lawmaking processes—legislative, administrative, judicial—that are mediated
by constitutional norms and jurisprudence. Such politics register the extent
to which constitutional courts have accrued agency in the world of govern-
ment. Securing the relative autonomy of constitutional law and courts is
a necessary precondition for such agency. It is for this reason, at least, that
efforts to distinguish between “law” and “politics” are part and parcel of
constitutional politics.
1. Law and politics

All law is politics, but not all politics is law. Kelsenian orthodoxy has it that law
is the formalization of politics; politics is formalized though discrete acts taken
by those actors who are authorized to produce and enforce legal norms, includ-
ing judges. Constitutional courts, when they engage in constitutional review
of statutes, participate in the legislative process, Kelsen argued, and thus per-
form an inherently “political” function.11 Once the legitimacy of the modern
state is conceived as a constitutional Rechtstaat—insular, hierarchical, and
necessarily complete—there is no place in the normative system for a non-
juridified politics (or lawmaking), unless one is prepared to theorize the
11
Hans Kelsen, La garantie juridictionnelle de la Constitution [The Jurisdictional Protection of the
Constitution], 44 R.D.P. 197 (1928).
formal legitimacy of an unconstitutional norm. In the 1950s, American politi-

cal science adopted an equally expansive conception of “the political.”12 In that
discipline, Richard Hodder-Williams tell us, “there is a general acceptance that
politics … is the process through which competing choices over public policy
are made,” and “the exercise of state power to enforce these choices” is
legitimated.13 In mainstream political science, then, as in the Kelsenian schema,
all courts are part of politics to the extent that they make authoritative, policy-
relevant choices. Constitutional courts—by the very nature of the norms they
are required to interpret and enforce—are highly visible in, and unusually
generative of, legislative politics.
Even if one accepts these points, there exist myriad ways of characterizing,
observing, and evaluating the politics of constitutional review. I will discuss a
series of such characterizations in this article, beginning with the almost

unidimensional conception of politics that Professor Favoreu opposed with
such fervor.
2. Constitutional judging as ideological partisanship

For many European legal scholars, including Professor Favoreu, the claim that
constitutional courts are “political” is treated as an accusation: judges do not
decide cases according to the law but, rather, use their office to further their
own ideological goals or those of the political formation with which they
are affiliated. As Favoreu characterizes the charge, Conseil Constitutionnel
members—being political appointees—are actually incapable of independent
action and “behave … necessarily as partisans and not as judges.”14 In France,
there is a long record of elected officials and journalists attacking constitutional
judges on grounds of partisanship, often in hyperbolic terms. Favoreu sought
to rebut the accusation by distinguishing the powers of the legislature and the
parliament and demonstrating that the French Conseil produced relatively
coherent case law. The import of the Conseil’s jurisprudence could not be a
matter of simply counting the votes of those appointed by the left and the right
(in France, votes are secret, and dissents are not permitted). He regularly cited
the Conseil’s own pronouncement (which it has reiterated many times) that its
review authority “does not confer upon it a general power of judgment and
decision making identical to that possessed by parliament.”15 For Favoreu and
12
In the most widely used formulation, Easton defined “politics” as those processes and behaviors
that impinge on “the authoritative allocation of values.” David Easton, An Approach to the Analysis
of Political Systems, 9 WORLD POL. 383 (1956).
13
Richard Hodder-Williams, Six Notions of ‘Political’ and the United States Supreme Court, 22 BRIT. J.
POL. SCI. 1, 3 (1992).
14
FAVOREU, NATIONALISATION, supra note 4, at 23.
15
Louis Favoreu, Conseil constitutionnel: mythes et réalites [The Constitutional Council: Myths and
Realities], 19 REGARDS SUR L’ACTUALITE, June 1987; FAVOREU, LA POLITIQUE SAISIE, supra note 6, at 15, 73.
many of his followers, two ideal, polarized positions appear to be the only ones
possible: either the Conseil legislates exactly as does parliament, or it does not
legislate at all.16
3. Governance
I define governance generically, as comprising the social mechanisms through
which normative systems are adapted, over time, to changing circumstances
and the needs and purposes of those who live under them.17 Law is one such
normative system, and the courts are one important mechanism of normative
adaptation. Government—the activities of the hierarchically ordered, organiza-
tionally differentiated institutions that one finds in the modern state—consti-
tutes one form of governance. Courts, being part of government, cannot escape

being classified and treated as part of the political world. As social scientists
working in diverse traditions have shown, courts have been a crucial compo-
nent of successful state- and market-building; moreover, effective judicial review
can make a polity more supple and more likely to survive crises.18 These results
depend on the capacity of judges not only to enforce but to make the law through
the propagation of precedent-based argumentation and decision-making.19
In Europe, the move from the “old constitutionalism”—legislative sover-
eignty and its corollaries—to the “new constitutionalism” depends heavily on
constitutional review as a mechanism of governance. The precepts of this new
constitutionalism can be simply listed: (a) state institutions are established by,
and derive their authority exclusively from, a written constitution; (b) this con-
stitution assigns ultimate power to the people by way of elections; (c) the use of
public authority, including legislative authority, is lawful only insofar as
it conforms with the constitutional law; (d) the constitution provides for rights
and a system of constitutional justice to defend those rights; and (e) consti-
tutional courts not only have a duty but are fully empowered to manage this
16
In this paper, I do not discuss the extent to which appointment procedures, the partisan affilia-
tion of judges, and the decision rules of constitutional courts have influenced the development
of constitutional law in Europe. These factors have surely mattered, but how much remains a
mystery. The issue poses fierce methodological difficulties, and virtually no sophisticated com-
parative work on it has yet been produced.
17
Alec Stone Sweet, Judicialization and the Construction of Governance, 32 COMP. POL. STUD.
147 (1999).
18
DOUGLAS NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE (Cambridge Univ.
Press 1990); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS 21–38 (Free Press 1989);
Neil Fligstein & Alec Stone Sweet, Constructing Polities and Markets: An Institutionalist Account of
European Integration, 107 AM. J. SOC. 1206 (2002).
19
Alec Stone Sweet, Path Dependence, Precedent, and Judicial Power, in ON LAW, POLITICS, AND JUDICIAL-
IZATION 112–135 (Martin Shapiro & Alec Stone Sweet eds., Oxford Univ. Press 2002).
system of justice. As an overarching political ideology, or theory of the state,

the new constitutionalism faces no serious rival today.20
Constitutional courts govern to the extent that they make law; they adapt
the constitutional law, on an ongoing basis, to resolve policy disputes. Such
lawmaking has two facets. First, constitutional lawmaking serves to construct
the constitution, insofar as constitutional courts clarify the contents and appli-
cability of the law to the activities of those who are governed by it. Second, in
applying the dictates of higher law to resolve litigation, constitutional courts
legislate (or judge, or administer) more concretely. Once activated, the consti-
tutional judge occupies a crucial strategic position, that of the central player in
what game theorists call a “nested” game.21 Often enough, those who litigate
the constitutional law are not only seeking to prevail in a discrete conflict they
are also seeking to persuade the judge to interpret constitutional provisions

one way rather than another, so as to benefit them for the future. Constitutional
adjudication links (a) a relatively abstract dispute about the nature and scope
of the rules of the game that govern the exercise of public authority—the con-
stitution—with (b) a relatively concrete dispute about how that authority was,
in fact, exercised. Thus, to the extent that constitutional courts effectively
resolve these disputes, they simultaneously make the law that governs the
dispute and prospectively build the constitution. The analyst may choose to
focus on how constitutional courts legislate, or on how the rules governing
legislating are constructed through interpretation and application, but each
activity depends on the other.22
In contemporary Europe, virtually all of the constitutional law that matters
is case law; it is a construction of constitutional courts. This lawmaking—or
constitutional jurisprudence—is typically treated by lawyers, doctrinal author-
ities, and state officials as possessing precedential authority. Given easily satis-
fied requirements—the constitution’s normative supremacy vis-à-vis other
legal norms, a steady caseload, and a minimally robust notion of precedent—
we can expect a series of linked outcomes. Constitutional courts, as privileged
strategic sites for lawmaking, will attract litigation; they will build a precedent-
based jurisprudence that will serve to organize the market for constitutional
adjudication; their jurisprudence will come to dominate the overall constitu-
tional development of the polity; and their lawmaking will place the legislature
and the judiciary under the tutelage of this evolving jurisprudence. These out-
comes have, in fact, occurred, provoking the production of a huge literature
20
This is true even where constitutional review is relatively weak, as in Russia.
21
GEORGE TSEBELIS, NESTED GAMES (Univ. Calif. Press 1990).
22
These points have been debated more technically, with reference to the French system, in the
exchange between Georg Vanberg and Alec Stone Sweet. Georg Vanberg, Abstract Judicial Review,
Legislative Bargaining, and Policy Compromise, 3 J. THEORETICAL POL. 299 (1998); Alec Stone Sweet,
Rules, Dispute Resolution, and Strategic Behavior: Reply to Vanberg, 10 J. THEORETICAL POL. 327
(1998).
on the causes and appropriateness of the supremacy of the constitutional judge

within legislative and judicial processes.
In the domain of rights protection, constitutional courts have developed
highly intrusive styles of adjudication that reinforce their strategic centrality.
“Proportionality analysis,” for example, has emerged as a kind of master tech-
nique for resolving disputes between (a) rights claims and (b) a constitutionally
derived public interest pursued by the state. At its core is a strict, least-restrictive-
means standard, requiring the judge to ask if the state could not have proceeded
in ways that would have caused less harm to the rights of individuals. If the
answer is yes, then the government’s interest may not prevail; if the answer is
no, then balancing follows. If, in applying proportionality tests, courts neces-
sarily become supplementary legislators and administrators, the reverse is also
true: the enforcement of the least-restrictive-means standard pushes lawmak-

ers and administrators into a judicial mode, requiring them to reason as the
judge would, that is, to consider the proportionality of their own activities.
Considered in more sociological terms, proportionality itself constitutes a highly
institutionalized mode of governance, in that it serves to connect the domain of
norms and rights with the domain of interests and decision making.
Burgeoning caseloads, the production of an ever-more technical and dense
case law, the consolidation and wide diffusion of proportionality analysis, and
increasing scholarly anxiety about the legitimacy of the constitutional judge
are symptomatic of the political success of constitutional review—as a mech-
anism of governance—in Europe today. Constitutional courts have also been
critical to the successful consolidation of new democratic regimes across
Europe. For reasons that have been explicitly theorized,23 regimes in which
constitutional review has emerged as an effective mechanism of governance
are more stable, and more likely to withstand crisis and challenge, than are
regimes in which review either does not exist or exists but is ineffective.24
4. Delegation
It is now commonplace for scholars working in the law-and-economics tradi-
tion and in political science to conceptualize courts in terms of contracting and
principal-agent (P-A) theory, which combines a concern for the functional log-
ics of delegation (institutional design, ex ante) and the politics of limiting
agency costs (systems of control, ex post). In this view, constitutional review
23
See generally STONE SWEET, GOVERNING WITH JUDGES, supra note 5.
24
Constitutional review is effective to the extent that the important constitutional disputes that
arise in the polity are litigated, that the constitutional court seeks to resolve these disputes through
defensible reasons, and that those who are governed by the constitutional law accept the court’s
case law as authoritative.
provides a mechanism for completing “relational” constitutional contracts,25

and constitutional courts help the political parties (which negotiated the con-
stitution) overcome the commitment problems associated, for example, with
providing for federalism (or strong regionalism) and fundamental rights.
P-A theory furnishes a ready-made body of concepts and vocabulary to ana-
lyze judicial politics, which partly accounts for its popularity. Consider this
stylized account of the ordinary judge as agent of the legislature. The
judge’s principal is the parliament, and the normative instrument parliament
controls—the statute—fixes, substantively, the terms of the judge’s mandate.
According to classic separation-of-powers theory in France, the judge is a “slave”
to statute: her purpose is to enforce parliament’s will. In reality, we know that
the judiciary engages in such extensive interpretation of the codes that these
statutes often mean only what the courts say they mean. Nevertheless, the prin-

cipal remains in charge. If ministers or parliamentarians notice that a judge has
applied a statutory provision in a way that they did not intend and do not like,
the law can be changed. Thus, to the extent that agency problems can be identi-
fied, they can be corrected. The principals may overturn judicial decisions
by reworking the normative instrument that they themselves directly control,
thus precluding the offending judicial interpretation. Other things being equal,
the decision rule governing the P-A relationship—a majority vote of the
parliament—favors control by the principals, and this rule is constitutionally
frozen into place. Further, judicial officials are typically employed and managed
by ministries of justice, which may give political elites some leverage over judi-
cial outcomes. The P-A framework simplifies judicial politics and isolates key
variables while leaving the important empirical question—How effectively do
principals, in fact, monitor and control their agents?—open to inquiry.
I will soon argue that the standard P-A accounts fail to capture much of
what is most important about constitutional politics in contemporary Europe.
First, however, I wish to outline a basic congruence between Kelsenian con-
ceptions of the juridical-political world and the orthodoxies of delegation the-
ory. Simplifying, Kelsen viewed a system based on legislative sovereignty as
logically incomplete, indeed unstable, and sought to ground the legality of
state action more formally in a supralegislative body of rules, a Grundnorm.
Kelsen argued that for any given act to be considered valid, it must be enabled
by, and not in conflict with, a formally superior legal norm. Furthermore, all
legal rules, in order to confer validity on lower order rules, must be capable
of being enforced by a judge, or some specific jurisdiction established for
that purpose.
25
Most agreements of any complexity are generated by what organizational economists call “rela-
tional contracting.” The parties to an agreement seek to broadly “frame” their relationship, by
agreeing on a set of basic “goals and objectives,” fixing outer limits on acceptable behavior, and
establishing procedures for “completing” the contract over time. PAUL MILGROM & JOHN ROBERTS,
ECONOMICS, ORGANIZATION, AND MANAGEMENT 127–133 (Prentice-Hall International 1992).
The new constitutionalism established self-referential, hierarchically ordered,

systems of norms. The validity of every legal rule depends upon the validity of
another, higher-order legal rule; and the hierarchy of norms as a governance
structure depends, for its own systemic validity, on the constitution (the
Grundnorm; a constitutive “rule of recognition” in Hartian terms).26 A ministerial
decree or a police action taken in pursuance of a statute must respect the terms of
that statute, as controlled by lawfully designated judicial authority, or be invalid;
and the statute itself, as controlled by constitutional judges, must conform to
constitutional dictates or be invalid. The legality of any norm, which reduces to
constitutional legality, and the juridical-political legitimacy of the legal system
proper are virtually one and the same thing. In contemporary practice, the con-
stitutional law, as validated by the sovereign people, comprises both a source
of law, in and of itself, and the ultimate source of legitimacy for all other norms.

Kelsen’s model of the juridical state fits easily into the language of delegation
theory. The distinguishing feature of P-A models is that they link, as in a chain,
authoritative acts of delegation from one constitutionally recognized authority to
another. In Europe and North America, these acts typically take a highly legalis-
tic form. The sovereign people (first-order principals) ratify a constitution, which
delegates power to governmental bodies, like legislatures and courts. The statute
is the normative instrument through which governments and legislatures
(agents of the electorate, but second-order principals vis-à-vis ordinary judges
and administrators) delegate certain specific responsibilities and powers to the
courts and the administration. For each link in the chain, principals can there-
fore be identified by virtue of the constitutional authority they possess to delegate
through specific normative instruments. Agents are constituted, and their activi-
ties mandated or circumscribed through these acts of lawmaking. In this system,
the ultimate source of authority (and of the legitimacy of all delegated powers) is
the constitution, which is assumed to express the will of the sovereign people.
And the normativity of the constitution—its effectiveness as law—is guaranteed
through the delegation of constitutional review powers to constitutional judges.
Nonetheless, in Europe those who have negotiated constitutions have effec-
tively transferred, through a constitutional act of delegation, some of their
“political property rights” to a new institution, the constitutional court. In
such a situation, the traditional P-A framework loses much of its relevance.27
To take its place, I have proposed a model of “trusteeship,” a situation created
when principals, faced with acute commitment problems, choose to dele-
gate broad, open-ended fiduciary authority to a trustee court.28 A trustee is a
26
H.L.A. HART, THE CONCEPT OF LAW (Clarendon 1994) (1961).
27
See Giandomenico Majone, Two Logics of Delegation: Agency and Fiduciary Relations in EU
Governance, 2 EUR. UNION POL. 103, 104–113 (2001).
28
Alec Stone Sweet, Constitutional Courts and Parliamentary Democracy, 25 W. EUR. POL. 77
(2002).
particular kind of agent, one who possesses the power to govern those who
have delegated in the first place. The constitutional court is such a trustee,
exercising fiduciary responsibilities with respect to the constitution, defined as
that body of legal norms governing how all infraconstitutional norms are
to be made, interpreted, and applied. They do so in the name of a fictitious
entity—the sovereign People.
The move from the old to the new constitutionalism replaced a simpler
agency system—in which political parties governed through the exercise of
legislative and executive power—with systems of constitutional trusteeship. In
these systems, the parties, government ministers, and members of parliament
are never principals in their relationship to constitutional judges. Depending
upon the relevant constitutional rules in place, the political parties may seek to
overturn constitutional decisions or restrict the constitutional court’s powers,

but they may do so only if they can reconstitute themselves as a constituent
jurisdiction capable of amending the constitutional law (in Europe, only French
legislators may do so). Further, the decision rules governing constitutional
revision processes are more restrictive than those governing the revision of
legislation; in many countries, amendment is a practical impossibility, espe-
cially when it comes to rights provisions.
Executives and legislators perform some of the functions usually associated
with principals, as when they appoint members of the courts. Nonetheless, the
political parties—by establishing (a) the normative superiority of the constitu-
tion, (b) a review organ, and (c) specific procedures for constitutional revision—
have radically reduced their own influence over the development of the
constitution. Most of the time, the parties are players within the rule structures
provided by the constitution. They compete with each other in order to be
in the position to govern, and, once in power, they legislate—but under the
control of the constitutional judge.
The points just made can be formalized in terms of a “zone of discretion”—
the strategic environment—in which any court operates. This zone is deter-
mined by (a) the sum of powers delegated to the court and possessed by the
court as a result of its own accreted rulemaking minus (b) the sum of control
instruments available for use by nonjudicial authority to shape (constrain)
or annul (reverse) outcomes that emerge as the result of the court’s perform-
ance of its delegated tasks. In situations of trusteeship, wherein the agent
exercises fiduciary responsibilities, the zone of discretion is, by definition,
unusually large. In some places and in some domains, the discretionary
powers enjoyed by constitutional courts are close to unlimited.
Nothing in delegation theory can tell us what constitutional courts will
actually do with their discretion; no functional theory of institutional design,
on its own, could. We know that the framers of constitutions wished to see
certain outcomes produced and others avoided. But, given the zone of dis-
cretion enjoyed by constitutional judges, we have no reason to expect the
ex ante policy preferences of the framers to be decisive. Indeed, most of the
important outcomes of constitutional politics reported in this paper were

neither intended nor anticipated by the founders. French constitutional law
is a case in point.
4.1. The Conseil Constitutionnel and the juridical coup d’état

The French situation contrasts sharply with those of European nations that
fully embraced the new constitutionalism during the latter half of the twenti-
eth century. The Conseil’s original function was to guarantee executive con-
trol over parliament, a control that was to be virtually absolute. In the Travaux
préparatoires, the framers blocked efforts to confer “judicial” attributes on the
institution.29 They summarily rejected proposals, made by the public lawyers
in the group, to model the Conseil on the Austro-German prototype; and they
refused to grant the Conseil jurisdiction over a charter of rights. Although the

preamble to the 1958 Constitution declares the “solemn attachment” of the
French people to the preamble of the 1946 Constitution, the framers insisted
that neither was to be enforceable. To decide otherwise, it was stated again
and again in 1946 and 1958, would be to establish a “government of
judges.”30 In 1971, the Conseil began to incorporate a set of rights texts found
in the 1946 preamble into the 1958 Constitution.31 By 1979, it had used each
of these texts to strike down government-sponsored statutes adopted by
parliament.32
I consider the process through which the French acquired a Conseil-
enforced, justiciable charter of rights to be a juridical coup d’état, in that it
fundamentally transformed the normative underpinnings of the French
Constitution in ways that the founding constituent power had explicitly
rejected. Expressed in the language of delegation theory, the Conseil radically
expanded its own zone of discretion by conferring on itself jurisdiction over
rights. In the 1980s, this new Constitution was partly legitimized through
use, by the elected politicians. With each alternation between left and right,
the former majority aggressively used the preamble (rights arguments) in its
referrals to the Conseil. The parties did not combine to reverse the Conseil’s
move. A “government of judges” was indeed created, but it was constructed
29
STONE SWEET, GOVERNING WITH JUDGES, supra note 5; TRAVAUX PRÉPARATOIRES DE LA CONSTITUTION DU
4 OCTOBRE 1958 [TRAVAUX PRÉPARATOIRES FOR THE CONSTITUTION OF OCTOBER 4, 1958] (Documentation
française 1960).
30
For the Fourth Republic, see especially Débats du 7 Mars, 1946, Assemblée nationale constitu-
ante [National Constituent Assembly], 607–639. For the Fifth Republic, see TRAVAUX PRÉPARATOIRES,
supra note 29, at 101–102.
31
Council Decision 71–44, RECUEIL DES DECISIONS DU CONSEIL CONSTITUTIONNEL [COLLECTED DECISIONS OF THE
CONSTITUTIONAL COUNCIL] 29 (1971).
32
Council Decision 79–10, RECUEIL DES DECISIONS DU CONSEIL CONSTITUTIONNEL [COLLECTED DECISIONS OF THE
CONSTITUTIONAL COUNCIL] 33 (1979).
by parliamentarians for their own partisan purposes.33 The new Constitution

was also partly legitimized by the engagement of legal scholars. Prior to incor-
poration, the mainstream public law community in France dismissed the
Conseil as a “political organ” unworthy of respect or serious attention.34 After
incorporation, Professor Favoreu and others reconceptualized the Conseil as
a “court-like” body,35 gradually garnering the support of public lawyers.
This support is today virtually unanimous. By the close of the 1980s, French
constitutional law was an ascendant feature of the French legal landscape.
5. Constitutional judges as legislators

At the very least, judges are political actors to the extent that they make law.
This claim does not in itself deny that judicial politics may differ from other pol-

itics in important respects. Judicial lawmaking does not proceed in the same
way as, say, parliamentary or ministerial lawmaking. Courts, unlike legisla-
tors, do not activate themselves, and they may be relatively constrained by
jurisdiction and office. Judicial politics are, therefore, always partly the politics
of who litigates, for what reasons, and through what procedures, although
these issues are not given enough attention in mainstream European constitu-
tional scholarship. Further, courts package their decisions in the form of a
jurisprudence (doctrine); additionally, they portray their decision making as a
product of formal deliberation on the nature, scope, and applicability of consti-
tutional provisions to a given dispute. It is a matter of great controversy, both
in legal theory and in the social sciences, to what degree legal norms and doc-
trine, deliberation, and the necessity of giving reasons actually constrain judi-
cial decision making. But few would deny that constitutional judges arrive at,
and seek to justify, their decisions differently than do other lawmakers, through
legal reasoning and reason giving (including citing past decisions or repeating
the reasons proffered in prior cases), and that these differences matter. Critically,
those who would litigate the constitution are led to treat those justifications as
possessing some precedential status. Absent at least a rudimentary notion of
precedent, constitutional review could not operate as a mechanism of govern-
ance, and the law would have not agency in the world of government.
33
Since 1981, the opposition has referred about one-third of ordinary legislation adopted, an ex-
traordinary ratio given the fact that most bills passed are not controversial (or subjected to a roll
call vote). Referrals have a high rate of success: since 1981, more than half of all referrals ended in
some form of annulment by the Conseil. Statistics reported in Stone Sweet, supra note 17, at 184.
34
See, for example, the leading treatise on constitutional law, MAURICE DUVERGER, INSTITUTIONS
POLITIQUES ET DROIT CONSTITUTIONNEL [POLITICAL INSTITUTIONS AND CONSTITUTIONAL LAW] 634–635
(Presses Univ. de France, 1962).
35
STONE SWEET, GOVERNING WITH JUDGES, supra note 5, at 93–116; Michael Davis, The Law/Politics
Distinction, the French Conseil Constitutionnel, and the U.S. Supreme Court, 34 AM. J. COMP. L.
45 (1986).
In France, scholars have long sought to distinguish “things legal” from

“things political,” and Professor Favoreu was no exception. Favoreu persist-
ently sought to demonstrate that the French Conseil’s decisions could be
deduced from the French Constitution, that they were broadly consistent with
past decisions, and that only through the proper application of legal science
could they be rightly understood.36 Favoreu emphasized differences in the
relative powers of parliament and the Conseil, and in their respective juris-
dictional attributes. Fair enough. Sophisticated political analysts, however,
could accept these points, but then go on to treat constitutional review as a
stage—however juridical in nature—in the legislative process.
As Favoreu emphasized, the rules governing the exercise of constitutional
review of legislation contrast with the rules governing parliamentary decision
making. But this contrast is exactly what attracts litigation and politicizes

review. Under majority-decision rules, the parliamentary opposition always
loses. Because a constitutional court is not a parliamentary chamber but the
judge of the constitution, the move to the constitutional review stage recasts
the strategic environment in which legislators find themselves. In France,
where only abstract review exists, legislating and the construction of the con-
stitution are interdependent processes. The formal legislative process looks like
this: government (drafts bills) ® parliament (deliberates, amends, and adopts
bills) ® entry into force upon the president’s signature. After promulgation,
the legislative process gives way to administrative and judicial processes. An
abstract review referral adds another stage to the process, wherein the consti-
tutional judge undertakes a final “reading” of a referred statute. The modified
legislative process now looks like this: government ® parliament ® Conseil
(review of constitutionality). The Conseil must review statutes referred, and
statutory provisions deemed unconstitutional may not be promulgated; no
appeal of the Conseil’s decisions is possible. The argument applies to all abstract
review situations in Europe.
Most European constitutional courts mix abstract and concrete review
jurisdiction. In concrete review systems, ordinary judges are responsible for
detecting possible violations of constitutional law by legislators and adminis-
trators, for sending these to the constitutional court for review, and for setting
aside acts of the state the constitutional court has declared unconstitutional.
In addition, where the horizontal effect of constitutional rights has been con-
solidated, ordinary judges possess expanded opportunities to interpret and
apply the constitution on their own, thus further weakening their subservi-
ence to the legislator (discussed below). Private individuals, companies,
and interest groups litigate in order to provoke changes in statutes, or to place
constraints on the exercise of legislative power. Judicial processes—once
36
Favoreu, Conseil constitutionnel: mythes et réalites, supra note 15; FAVOREU, LA POLITIQUE SAISIE, supra
note 6.
placed in the shadow of constitutional review—have become sites of lawmak-

ing that supplement and, at times, rival the legislature. In systems in which an
individual complaint procedure exists, this outcome is reinforced, since liti-
gants can appeal judicial decisions (denying standing or their constitutional
claims) and statutes (under certain conditions) directly to the constitutional
court.
In my research, I explicitly modeled abstract review courts as “specialized”
legislative chambers, specialized in that the courts’ powers are restricted to
evaluating the constitutionality of state acts, including statutes.37 I did so for
analytical purposes—to focus empirical attention on constitutional review as
a governance mechanism. Professor Favoreu, however, considered my formu-
lation to be quite dangerous, as a normative matter. Kelsen had addressed vari-
ous aspects of this controversy in his own political theory of constitutional

justice, which remains a standard reference point for debates about the poli-
tics of constitutional review.
5.1. The positive and negative legislator

Hans Kelsen not only provided the template for the modern constitutional
court he produced a theory whose purpose was to legitimize constitutional
review in the face of systemic hostility toward judicial power.38 In France,
Kelsen’s arguments became quasi-official dogma in the 1980s,39 in part,
because they were constantly deployed by Professor Favoreu to counter the
charges that French constitutional review operated as a “government of judges.”
Kelsen understood the constitutional review of statutes to be an inherently
political activity—however judicial in form—since the reviewing authority
would inevitably participate in the legislative function. Nonetheless, he distin-
guished how parliaments and constitutional courts make law. Parliaments, he
argued, are “positive legislators,” since they make law freely, according to their
own policy preferences, subject only to the constraints of the constitution (for
example, rules of procedure). Constitutional judges, on the other hand, are
“negative legislators,” whose legislative authority is restricted to the annul-
ment of statutes when they conflict with the law of the constitution.
The theoretical distinction between the positive and the negative legislator
relies almost entirely on the absence of enforceable constitutional rights pro-
visions. Although this fact is usually ignored by his modern-day followers,
37
STONE SWEET, GOVERNING WITH JUDGES , supra note 5, at 209–221; Alec Stone Sweet, Where Judicial
Politics are Legislative Politics: The French Constitutional Council, 15 W. EUR. POL. 29 (1992).
38
Kelsen, supra note 11.
39
Kelsen’s ideas came to France mainly through the doctoral thesis of Charles Eisenmann. CHARLES
EISENMANN, LA JUSTICE CONSTITUTIONNELLE ET LA HAUTE COUR CONSTITUTIONNELLE D’AUTRICHE [CONSTITUTIONAL
JUSTICE AND THE AUSTRIAN CONSTITUTIONAL COURT] (Economica 1986) (1928). Eisenmann, a close
student of Hans Kelsen’s, argued in favor of a specialized constitutional court. Until the 1970s,
his work was largely ignored. Today it is viewed as seminal in France.
Kelsen focused explicitly on the dangers of putting rights in constitutions.

He equated rights with “natural law” and warned that rights adjudication
would inevitably obliterate of the distinction between the negative and the
positive legislator. In their quest to discover the content and determine the
scope of rights, constitutional judges would, in effect, become omnipotent
superlegislators.40
Professor Favoreu and his colleagues routinely claim that constitutional
courts function to protect constitutional rights, and that this function is basic
to the legitimacy of review. At the same time, they also ritually rehearse the
negative versus positive legislator distinction as a supplementary means of
bolstering these courts’ legitimacy.41 The contradiction is obvious and can-
not be resolved. Kelsen was right: constitutional judges have become positive
legislators to the extent that they, in fact, protect rights.

5.2. France and the “government of judges”
The phrase gouvernement des juges entered French discourse in the 1920s,
through the work of the comparativist lawyer, Édouard Lambert.42 In its
most generic form, the phrase refers to a situation in which an auth-
ority external to, and independent of, the legislature exercises the power
to block or to alter the substance of legislative decisions made in
parliament. A government of judges undermines the separation of
powers, whose purpose is to subordinate the judicial function to the
political (or lawmaking) function. In the 1970s, the incorporation of rights
into the Constitution increased the Conseil’s capacity to make law, thereby
introducing a very high degree of uncertainty into the legislative process.
In the 1980s, a series of confrontations between new electoral majorities
and the Conseil erupted, in which both the left and right savagely attacked
the Conseil for thwarting the general will and for acting as an illegitimate
“government of judges.”
40
Kelsen, supra note 11, at 221–241. Although this point will not be explored further, the position
of many scholars and constitutional judges, is that rights possess a kind of supraconstitutional
status (their contents can not be altered by constitutional revision), which is akin to a natural
law position. See, Table ronde: Révision de la Constitution et justice constitutionnelle [Roundtable: Re-
viewing the Constitution and Constitutional Justice], 10 ANNUAIRE INTERNATIONAL DE JUSTICE CON-
STITUTIONNELLE 27–282 (1995).
41
Alexandre von Brünneck, Le Contrôle de Constitutionnalité et le Législateur dans les Démocraties
[The Check of Constitutionality and the Lawmaker in Democracies], 4 ANNUAIRE INTERNATIONAL DE JUSTICE
CONSTITUTIONNELLE 15–49 (1988). Favoreu, La Légitimité du juge constitutionnel, supra note 6.
42
ÉDOUARD LAMBERT, LE GOUVERNEMENT DES JUGES ET LA LUTTE CONTRE LA LEGISLATION SOCIALE AUX ETATS-UNIS
[THE GOVERNMENT OF JUDGES AND THE STRUGGLE AGAINST SOCIAL LEGISLATION IN THE UNITED STATES] (Marcel
Giard 1921); Michael Davis, A Government of Judges: An Historical Re-View, 35 AM. J. COMP. L. 559
(1987).
As far as I can determine, Favoreu’s long-term collaborator, Loïc Philip, was

the last major French constitutional scholar to address these issues critically.
Writing for the Revue du droit public in 1983, Philip argued that “the constitu-
tional judge no longer limits himself to ensuring respect for the constitution
but is more and more led to say what the constitution is.” As the scope of rights
provisions “grows ever larger and their impact extends ever wider,” he made
clear, “a quite dangerous situation” had emerged, one in which the Conseil’s
vast discretionary powers “challenge the parliament’s powers of judgment”
directly and systematically. The rest of the field, however, had begun to pro-
ceed as if the Conseil has always possessed jurisdiction over the preamble.43
Professor George Vedel assessed his own tenure on the Conseil (1980–1989)
in this way:

Constitutional review rests … not only the Constitution, but on the Dec-
laration of the Rights of Man and the 1946 Preamble. These texts pos-
sess objective and permanent status. [W]e never acted as a gouvernement
des juges. Contrary to what the U.S. Supreme Court did before or what
sometimes the German Constitutional Court does, we refused to invoke
principles not contained in the texts but that instead come from [our
own] political or moral philosophy.44
In my view, these claims are indefensible.45

For his part, Professor Favoreu developed his own political theory of consti-
tutional review. His ideas deserve summary attention, not least because it is
quite rare for a European constitutional lawyer to deal explicitly with constitu-
tional politics. Favoreu’s theory is one of the most interesting and complete
that is currently available.
Favoreu offered an alternative to the government-of-judges analysis of
the juridical coup d’état by the Conseil and the subsequent explosion of
constitutional lawmaking.46 Most important, he claimed that constitutional
43
In 1986, Jacques Robert (University of Paris law professor, then editor of the Revue du droit public,
and later a member of the Conseil) responded to the Chirac government’s accusation that the Con-
seil had developed far from the limited role which the founders had given to it as follows: “The
terms of the Preamble state that the constitutional judge was, from the Conseil’s creation, invested
with the responsibility [la mission] to declare if a law voted by parliament … conforms or not to the
liberties, rights, and principles contained in the texts explicitly and solemnly recalled by the
Preamble.” LA CROIX, Sept. 3, 1986, at 1.
44
Georges Vedel, Neuf ans au Conseil constitutionnel [Nine Years on the Constitutional Council], 55 LE
DÉBAT 49 (1989). See also Louis Favoreu, Les cent premieres annulations prononcées par le Conseil
constitutionnel [The First Hundred Annulments pronounced by the Constitutional Council], 103 R.D. P.
442, 445–447 (1987).
45
Stone Sweet, Where Judicial Politics are Legislative Politics, supra note 37.
46
FAVOREU, LA POLITIQUE SAISIE , supra note 6; Favoreu, La Légitimité du juge constitutionnel, supra note 6.
courts performed four basic regulatory functions. First, constitutional courts

act as either “a counterweight” against a parliamentary majority that is “too
powerful” (in France and Spain, for example), or as a “substitute” legislator,
where a parliamentary majority “does not exist” (as in Italy). Second, consti-
tutional review tends to “pacify” politics; “quarrels,” which before would
have been fought out in partisan terms unrelentingly, are “appeased” and
settled more reasonably—with reference to constitutional legality. Third,
Favoreu denied that constitutional courts ever “block,” “veto,” “censor,” or
“prevent” decisions taken by parliament; instead, they “guide,” “direct,”
“authenticate,” and “correct” the legislator, “putting reforms on the right
normative track … the constitutional one.” Thus, far from obstructing the
general will, constitutional judges actually legitimize it! Last, in the absence
of constitutional review, the argument goes, human rights would enjoy no

protection.
I have evaluated these formulations elsewhere and will not repeat my criti-
cisms here.47 It is enough to note that constitutional judges can produce these
beneficial effects on the polity only insofar as they, in fact, behave as (very pow-
erful) positive legislators.48 If, for example, constitutional judges did not annul
legislation as unconstitutional and, at the same time, tell (or at least signal to)
legislators how they should have legislated in the first place, then constitu-
tional review could function neither to “correct” statutes nor to put lawmakers
“on the right … track.” To take another example, the safeguarding of rights
often provokes, rather than appeases, partisan controversies.
6. Constitutional politics
There exists a substantial political science literature on constitutional politics
in Europe.49 Rather than rehearse the empirical findings of this research, I will
focus summarily on how constitutional adjudication has transformed the
nature of parliamentary governance in Western Europe. This transformation
can be observed and, to some degree, measured by tracing the impact of con-
stitutional lawmaking on the work of legislators and judiciaries.50
47
STONE SWEET, GOVERNING WITH JUDGES, supra note 5, at 93–115, 147–172, 173–208.
48
Favoreu disagreed. FAVOREU, LA POLITIQUE SAISIE, supra note 6, at 73.
49
CHRISTINE LANDFRIED, BUNDESVERFASSUNGSGERICHT UND GESETZGEBER [THE CONSTITUTIONAL COURT AND THE LEG-
ISLATOR] (Nomos 1984); Martin Shapiro & Alec Stone Sweet eds., Special Issue: The New Constitu-
tional Politics of Europe, 26 COMP. POL. STUD. (1994); Mary Volcansek, ed., Special Issue: Judicial
Politics in Western Europe, 15 W. EUR. POL. (1992); MARY VOLCANSEK, CONSTITUTIONAL POLITICS IN ITALY
(Macmillan 2000); Georg Vanberg, Legislative–Judicial Relations: A Game–Theoretic Approach to
Constitutional Review, AM. J. POL. SCI. 45 (2001), 346–361; GEORG VANBERG, THE POLITICS OF CONSTITU-
TIONAL REVIEW IN GERMANY (Cambridge Univ. Press 2004).
50
This section is based on STONE SWEET, GOVERNING WITH JUDGES, supra note 5, at 61–126.
6.1. Constitutional lawmaking and legislative power

The impact of constitutional lawmaking on the work of the legislator can be
both direct and indirect. When a court declares a bill or statute unconstitu-
tional, it vetoes the bill. The court has intervened directly in the legislative
process, in Kelsen’s phrase, as a “negative legislator.” Such annulments are
rare but often spectacular political events. Important legislation vetoed by con-
stitutional courts include the liberalization of abortion in Germany (1975,
1992) and Spain (1985), the nationalization of industry and financial institu-
tions in France (1981), the reform of German university governance (1973),
the bid to introduce affirmative action in France (1982), and, in all countries,
important revisions of the penal codes and various legislative moves to pri-
vatize industry or to establish antitrust regimes for the press and television
sectors.

Yet constitutional judges have also come to exercise substantial indirect
authority over the legislature, to the extent that case law, in any given
policy domain, meaningfully guides legislative choice and process. There
are two archetypal forms of indirect impact, both of which result when
legislators anticipate the preferences of the constitutional court, as these
preferences have been revealed through constitutional lawmaking. The first—
“autolimitation”—refers to the exercise of self-restraint on the part of the
government and its parliamentary majority in anticipation of an annulment
by the constitutional court.51 One observes autolimitation when the govern-
ment and its parliamentary majority take decisions, during the legislative
process, that (a) sacrifice previously held policy objectives in order to (b) reduce
the probability that a bill will be either referred to the court or judged uncon-
stitutional. Hundreds of bills have been altered, even gutted, by such de-
cisions (including the French decentralization [1982] and press [1984] laws
and, in Germany, the industrial codetermination bill [1976]).
The second form of anticipatory reaction—what I call “corrective
revision”—takes place after a bill has been annulled. Corrective revision refers to
the re-elaboration of a censured text in conformity with the court’s decision in
order to secure promulgation. These legislative processes are highly structured
by case law, given that the judges have already made their legislative choices
explicit and that oppositions work, predictably, to monitor the majority’s com-
pliance with the ruling.
The logic of corrective revision is straightforward. Once a constitutional
court has annulled a bill and then gone on to state in precise detail what a con-
stitutional version of the bill would look like, the legislative majority is faced
with a choice. In theory, it has four options. First, it can engage in a corrective
revision process, securing constitutionality by deferring to the policy prefer-
ences of the constitutional court. This option is almost always the one selected.
51
The term was coined by Louis Favoreu. Favoreu, Décentralisation, supra note 4. In Germany, the
phenomenon has been studied extensively by Lanfried, supra note 49.
The majority knows that the surest way to secure promulgation of beleaguered
legislation is to concede part of their lawmaking authority to constitutional
judges. Second, it can forego the legislation entirely. This is rarely a viable
option for important pieces of legislation, since it is usually better for the major-
ity to get some part of what it wanted, rather than nothing at all. Third, it could
seek to circumvent the court’s ruling, for example, by creatively reformulating
the legislation. In such cases, lawmakers are, as it were, playing chicken with
the court, daring the judges to annul the bill a second time. Although they
often interpret a court’s ruling as narrowly as possible, to allow for maximum
legislative discretion over the precise terms of the correction, I know of no
important case where legislators have revised a censured bill but blatantly
ignored the court’s dictates.52 A final option exists: the majority can revise
the constitution in order to make constitutional those acts that have been

censored, repudiating the court in the process. The feasibility of this option
depends on how difficult it is to revise the constitution.53
Corrective revision leads to the dominance of constitutional courts over out-
comes. One finds relatively high levels of such dominance over—among
others—the penal, competition, and electoral areas of law and over the legal
regimes governing expropriation and privatization, abortion, education, and
industrial relations.
The extent to which constitutional courts intervene in legislative processes
and shape outcomes varies cross-nationally as a function of three factors.54
The first is the existence of abstract review jurisdiction. Where abstract review
does not exist (in Italy, for example), the court’s capacity to shape outcomes is
reduced, other things being equal. The second is the number of veto points
in the legislative process (the extent of centralized, executive control over the
policy process as a whole). Where there are relatively more veto points,
oppositions will make use of opportunities to block or water down the major-
ity’s bills before turning to the court, and the parliament will adopt fewer osten-
sibly radical reforms. The case of France lies at one end of the spectrum
(the court is usually the only veto point available to the political minority),
the cases of Germany and Italy at the other.
A third factor, the development of constitutional law through constitutional
lawmaking, is endogenous to the politics I am describing in the sense that con-
stitutional case law feeds back onto the legislature, reproducing the same
52
The German government was urged to do so by its parliamentary supporters after the 1975
abortion ruling, and the French government considered doing so in reaction to the nationaliza-
tion decisions (1981–1982).
53
I know of only one important instance: in 1993, the French constitution was revised to enable
the adoption of a law, previously annulled in important respects, on immigration and asylum.
54
For a fuller discussion see STONE SWEET, GOVERNING WITH JUDGES, supra note 5, at 31–60.
behaviors and reinforcing the same logics that provoked constitutional review
in the first place. As constitutional law expands to more and more policy areas,
and as it becomes thicker in each domain (more dense, technical, and differen-
tiated), so do the grounds for constitutional debate. The process (constitutional
litigation ® case law ® constitutional litigation) tends to reproduce itself, and
in so doing, the court’s authority over the legislative activity grows, and the
legislator’s discretion decreases.
In a phenomenon of growing importance, constitutional courts have also
developed techniques that, in effect, command legislatures to adopt particular
kinds of statutes—in order to guarantee the public weal—while protecting
rights that would otherwise be violated. In research worthy of wide interest,
Christian Behrendt has carefully documented the evolution of these types of
rulings, which he calls “injunctions,” in Belgium, France, and Germany.55 A

court may annul a statute but order the legislature to replace it. A court may
choose not to annul a statute but give the legislature a precise deadline for
revising the law. In these and many other cases, injunctions lay down man-
datory criteria to be met by parliament. In such circumstances, as Behrendt
forcefully argues, we have no choice but to abandon “the theory of the
negative legislator.”56
6.2. Constitutional politics and the judiciary

Although judicial annulment of legislative acts remains precluded, most new
European constitutions provide for concrete review, which organizes the inter-
actions between the judiciary and the constitutional court. Concrete review
processes permit ordinary judges to participate in the scrutiny of legislation,
which has weakened the dominance of statute over the decision making of the
ordinary (nonconstitutional) courts. Ordinary judges have an interest in acti-
vating constitutional review to the extent that they wish (a) to participate in
the construction of the constitutional law, and (b) to remove unconstitutional
(and perhaps unwanted) laws. Both are new powers for them. The constitu-
tional court also benefits from the system. Concrete review enlists potential liti-
gants and the judiciary in a general, relatively decentralized effort to detect
violations of the constitution; judicial officials provide the constitutional court
with a caseload; and the rules governing the process generally favor the con-
stitutional court’s control over outcomes.
The development of constitutional review has, in fact, enhanced the role
of the judiciary, a development sometimes called “the constitutionalization of
the legal order.” By constitutionalization, I mean the process through which
55
Christian Behrendt, Le Juge Constitutionnel, Un Législateur–Cadre Positif [The Constitutional
Judge: A Positive Lawmaker-Framework] (2005) (unpublished doctoral thesis, University of Paris I).
56
Id. at 431–456.
• constitutional norms come to constitute a source of law, capable of being

invoked by litigators and applied by ordinary judges to resolve legal dis-
putes, including those in the domain of private law;
• the constitutional court, because of its jurisdiction over concrete review
referrals and individual complaints, comes to behave as a kind of super–
court of appeal for the judiciary, involving itself in the latter’s tasks of
fact-finding and rule application; and
• the techniques of constitutional decision making become an important
mode of argumentation and decision making in the ordinary courts.
Constitutionalization is partly the logical, normative consequence of the

direct effect of rights provisions and, in part, the product of complex dialogues
between constitutional judges and the judiciary. There is space here only to

mention the most important outcomes of this process, and to discuss variations
among the main West European cases.57
Constitutionalization has subverted three very powerful, deeply entrenched
dogmas regarding the character and functioning of Continental legal systems.
First, the traditional notion that the various legal codes in each country consti-
tuted more or less autonomous realms, governed by different sources of law
and different principles of adjudication, is gradually being replaced by a new
view, Kelsenian in inspiration, that the constitutional law unifies these domains
into a generally coherent legal order. Second, the quasi-official myth of judges
as slaves of the codes, prohibited from creatively interpreting and rewriting the
laws, has been shattered. The very existence of constitutional review has sub-
verted the supposedly sacred nature of statute within the legal order; and the
practice of doing constitutional review, by processing concrete review refer-
rals, for example, has socialized judges into a new role, that of protecting the
legal order from those acts contaminated by unconstitutionality. Third, ortho-
dox accounts of the division of powers between constitutional judges and the
ordinary judges have been rendered obsolete. The fact that these dogmas per-
sist has a lot to do with the inability of judges, legal scholars, and political elites,
faced with constitutionalization, to reconstitute the political legitimacy of
the juridical order differently than they have in the past.
These commonalties aside, there is also significant cross-national variation
in the pace and scope of constitutionalization. Generally, the greater the level of
interaction between the constitutional court and any given court system (civil,
administrative, labor, tax, and so forth), the more the distinction between con-
stitutional jurisdiction and ordinary jurisdiction collapses. That is, as constitu-
tionalization deepens, ordinary judges necessarily behave as constitutional
judges—they engage in principled constitutional reasoning and resolve
57
Literature cited in STONE SWEET, GOVERNING WITH JUDGES, supra note 5, at 114–125. See also Mattias
Kumm, Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitution-
alization of Private Law, 7 GERM. L.J. l 342 (2006).
disputes by applying constitutional norms. And, as constitutionalization

deepens, constitutional judges become more deeply involved in what is,
theoretically, in the purview of the judiciary; they interpret the facts in a given
dispute; and they review the relationship between these facts and the legality of
infraconstitutional norms. Ordinary judges begin to treat the codes—more
overtly and explicitly than they had previously—less as a set of sacred
commands issuing from the sovereign and more as a system of rules that must
be coordinated with other systems of rules in light of changing conditions. In
Germany and Spain, the constitutional courts have, in fact, required ordinary
judges to do just this, using proportionality analysis.
Cross-national differences in the scope, pace, and intensity of constitution-
alization appear to be closely tied to the existence, or nonexistence, of particu-
lar modes of review. In Germany and Spain, where abstract review, concrete

review, and individual complaint procedures coexist, extensive constitutional-
ization has proceeded rapidly. Indeed, well over 90 percent of all individual
complaints allege that a judicial decision has failed to take into account the
constitutional law or the constitutional court’s decision making. For the court
to decide on the merits of such claims, it must delve deeply into the workings of
the judiciary, and it has the power to impose its own preferred outcome on any
recalcitrant judge. In Italy, the absence of an individual complaint mechanism
has reduced the capacity of the constitutional court to control judicial out-
comes (much as the absence of abstract review mechanisms has reduced the
court’s capacity to control legislative outcomes). In consequence, constitution-
alization has been more gradual and piecemeal, and the high civil court, the
Cassazione, has retained substantial interpretive autonomy. In France, where
promulgated statutes retain their formal, sovereign character and no formal
links between ordinary and constitutional jurisdictions exist, a primitive form
of constitutionalization can nevertheless be observed.
Last, there is increasingly compelling evidence that ordinary judges are
molding—by creatively interpreting—the various codes without first referring
questions to the constitutional court.58 Judges read constitutional principles
into the codes, through statutory interpretation (principled, constitutional
construction of statutes), and sometimes they have gone beyond, or even con-
tradicted, more restrictive interpretations of rights issued by the constitutional
court. By foregoing constitutional referrals, ordinary judges enhance their
own autonomy. In this way, both legislative intent and the alleged monopoly
of the constitutional court on constitutional interpretation are subverted,
enhancing the importance of the ordinary law courts as lawmakers in their
own right.
58
There exists no systematic research on the phenomenon.
7. Conclusion
In this article, I have discussed several ways of conceiving constitutional review
as “politics.” With the exception of the first, the conceptualizations offered are
largely complementary. Some readers may object that I have focused here on
constitutional lawmaking and its impact, rather than on how the judges arrive
at their decisions. There is, after all, a growing corpus of important research on
how judges interpret constitutions, and how they build precedent-based, doc-
trinal frameworks to guide those who use and are governed by the law.59 The
point, however, is not to downplay the jurisprudential: building a jurispru-
dence is precisely how constitutional courts make law. A constitutional court’s
actual influence on legislative and judicial processes will depend a great deal
on the techniques deployed to resolve disputes, and on the density and coher-

ence of the case law. My point is that—regardless of what jurisprudential
theories or techniques judges use— constitutional review always con-
stitutes a crucial stage in wider lawmaking processes. Further, it is undeni-
able that constitutional courts have become increasingly comfortable with
ordering the legislator to produce specific kinds of law, in specific ways.
Some readers may also object, as did Louis Favoreu, to the view that consti-
tutional review, wherever it is effective, must always be political. I do not see
how law and politics can be distinguished when it comes to processes engen-
dered by constitutional adjudication. In my research, constitutional doctrine
(lawmaking) is sometimes the political outcome to be explained, and some-
times the cause whose consequences for the greater political system are to be
explored. In any case, the dynamics of constitutional adjudication continue
to transform the nature of legislative and judicial authority across Europe.
On that profound truth, at least, Louis Favoreu and I never disagreed.
59
ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (Oxford Univ. Press 2002); Giovanni Sartori,
A Formal Model of Legal Argumentation, 7 RATIO JURIS 177 (1994); Stone Sweet, supra note 19.

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SYMPOSIUM

The politics of constitutional review in

To the question “Is constitutional review by a Constitutional Court law or politics?”

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Favoreu also staged a relentless—and ultimately successful—drive to secure

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“constitutional politics,”5 and he developed a political theory of constitutional

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1. Law and politics

formal legitimacy of an unconstitutional norm. In the 1950s, American politi-

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2. Constitutional judging as ideological partisanship

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system of justice. As an overarching political ideology, or theory of the state,

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on the causes and appropriateness of the supremacy of the constitutional judge

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provides a mechanism for completing “relational” constitutional contracts,25

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The new constitutionalism established self-referential, hierarchically ordered,

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important outcomes of constitutional politics reported in this paper were

4.1. The Conseil Constitutionnel and the juridical coup d’état

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by parliamentarians for their own partisan purposes.33 The new Constitution

5. Constitutional judges as legislators

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In France, scholars have long sought to distinguish “things legal” from

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placed in the shadow of constitutional review—have become sites of lawmak-

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5.1. The positive and negative legislator

Kelsen focused explicitly on the dangers of putting rights in constitutions.

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As far as I can determine, Favoreu’s long-term collaborator, Loïc Philip, was

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In my view, these claims are indefensible.45

courts performed four basic regulatory functions. First, constitutional courts

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6.1. Constitutional lawmaking and legislative power

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6.2. Constitutional politics and the judiciary

• constitutional norms come to constitute a source of law, capable of being

Constitutionalization is partly the logical, normative consequence of the

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disputes by applying constitutional norms. And, as constitutionalization

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