Along came a spider...

Upholding the Constitution and constitutional interpretation are mostly considered a shared responsibility of various actors: the legislature, the courts, political actors, public bodies, academia, society. Nevertheless, in many Member States, but not all, courts are central in upholding the Constitution.

Constitutional interpretation: judicial supremacy and/or dialogue?

Which actor has ultimate authority to interpret the Constitution? All courts, a specialised constitutional court, parliament, the people? Is there constitutional dialogue among constitutional actors? Can the (constitutional) legislature take recourse to constitutional override (Barber Protocol to Treaty of Maastricht) or legislative override (Human Rights Act)? What is the relationship between the constitutional court and the other courts within a State?

Judicial constitutional review

How and why do cases reach the (constitutional) courts? What is the purpose of constitutional review (to limit the exercise of power; to settle disputes among political actors horizontally (e.g. between legislative chambers R (Jackson) v AG, Hunting ban [2005] UKHL, 56) or between government and parliament (Conseil constitutionnel); to settle disputes among levels of government vertically (e.g. the division of competences between the federation and federated entities, such as in Germany, Spain, Italy); to protect rights in specific cases (recurso de amparo, Verfassungsbeschwerde); to improve decision making?

Are there questions which are left to the political branches of government? What is the self-perception of the courts of their role and function in the system, and of their place in the constitutional order, as it appears in case law? What techniques do the courts use to delimit the judicial function (‘law-politics-society divide’)?

Methods of judicial constitutional interpretation

What sources do the courts use as standards for review (text of the Constitution, unwritten constitutional principles, international and European law?) Do they take on a restrictive or a wide approach to the standards of review? (The Conseil constitutionnel extended the bloc de constitutionnalité to fundamental rights as referred to under the 1946 Constitution (decision 71-44 DC, 1971, liberté d’association). See also the Belgian Constitutional Court extending its jurisdiction via the prism of the principles of equality and non-discrimination and the ECJ adding general principles of Community law, including fundamentalrights, to the standard of review (Internationale Handelsgesellschaft, ERT)). Which techniques do they usetointerpret the Constitution (literal or contextual approach, history, practice, comparative law, purposive approach)?

Constitutional review and the EU

How is constitutional review affected by EU law? How does it relate to review in the light of EU law? Do constitutional courts apply/enforce EU law?