Towards an Institution-Independent Concept of Constitutional Review

Kazuo Fukuda*

What is constitutional review?  Although the question itself does not connote any institutional contexts, traditional literature has typically defined it as “the power/practice of courts to evaluate and determine the conformity of political acts with the constitution.”  As a result, the concept and practice of constitutional review has been largely equated to one led by courts.  Unfortunately, such synonymization overshadows the empirical reality of non-judicial bodies serving central reviewing roles in major democracies such as the Netherlands, Finland, and Japan.  By viewing constitutional review as a functional concept, from the institutional design perspective, this Article questions that scholarly tendency and proposes a working definition of constitutional review as an institution-independent concept.  This approach in turn encompasses institutional diversity inherently embedded into the practice of constitutional review.  Anchored by such a vision, the Article attempts to demonstrate key implications and values for conceptualizing constitutional review independently from institutions and actors.  Referring to concrete examples from different countries, it categorizes and juxtaposes existing constitutional review models led by various institutions on the same spectrum (treating court-led review models as only one such category).  Using a few countries as an example, the Article also preliminarily discusses how and where to institutionalize the practice of constitutional review so as to design an optimal review mechanism for countries.  In conclusion, the Article calls for a new research direction to establish the general literature on constitutional review that reflects the institution-independent concept.

*   Ph.D., Maurer School of Law, Indiana University.  For their generous support throughout his doctoral studies, he would like to thank the Rotary Global Grant Scholarship and Rotarians from Districts 2590 and 6580 (especially Tatsuya Kitase, Tadashi Nomoto, and Jim Bright).  For helpful suggestions and feedback, he wishes to thank Larry Alexander, Ngoc Son Bui, Beth Cate, Neal Devins, Rosalind Dixon, Michael Dorf, Barry Friedman, Scott Gant, Stephen Gardbaum, Charles Geyh, Tom Ginsburg, Alon Harel, Ran Hirschl, Jaakko Husa, Mikael Koillinen, Larry D. Kramer, Tuomas Ojanen, Vello Pettai, Kertti Pilvik, Steve Sanders, Mark Tushnet, Gerhard van der Schyff, and Susan Williams.  He would also like to thank Lisa D. Fukuda and the Columbia Journal of Transnational Law Editorial Board team (especially Articles Editor Austin Owen) for their thoughtful editing support throughout the drafting process.  All errors are his own.