Constitutional Justice: Control of Laws and the Constitutional Court

Constitutional Justice: Control of Laws and the Court

Constitutional Justice

Our legal system provides a body of constitutional review. The Spanish Constitution (EC) is the highest court, monitored by a specific body whose function is to ensure no rule of the Legal Order (OJ) is contrary to the Constitution.

The EC is the highest norm of the system. Thus, it provides for a monitoring system or organ to enable the EC to impose on the rest of the rules. This body is the Constitutional Court.

Models of Constitutional Justice

• American System: Born with a constitution, the U.S. Constitution in 1787, currently in force.

There was the concern that all the rules of the system adequately adhere to them. It does not expressly provide for the control of constitutionality. This control arises from a ruling of the Supreme Court (TS) in the case of Marbury v. Madison in 1803, after the date of the Constitution.

The construction is jurisprudential. The reasoning of this ruling is extremely simple and brilliant:

• We have a written Constitution, which limits the various branches of government, including the legislature.
• With a written constitution, we have two options:
  • The constitution is the highest norm and cannot be modified by ordinary means. The legislature cannot change the EC.
  • The constitution is a standard, and therefore the legislature can change it anytime.

The trial judge, who was Marshall, says that the correct solution is the first: that the constitution is the higher standard, and no standard may find the opposite. He notes that policies may be contrary to the Constitution. The judges have to see if the rules that apply in the case are constitutional.

If the rule is unconstitutional, the judge cannot apply it.

The judiciary carries out the control. A fuzzy system is a control that produces a result of a process. The judge resolves the case, questioning whether the rule should be applied to resolve constitutional or not. Control occurs in solving the case.

The legitimacy lies with the individuals and citizens. Parties have a role, and the effect will be to apply the rule to the case if the judge believes it is unconstitutional.