The ability of judges to supervise the constitution, has spread around
the world in recent decades. By our account, some 38% of all constitutional systems had
constitutional review in 1951; by 2011, 83% of the world’s constitutions had given courts the power
to supervise implementation of the constitution and to set aside legislation for constitutional
incompatibility. Thus, what Alexis de Tocqueville once described as an American peculiarity is now
a basic feature of almost every state (De Tocqueville 1835: 72-77).
Every aspect and institution of human civilization requires some form of government to prevent injustice and maintain order. People need boundaries. The healthiest, happiest children are those with clear boundaries. Citizens are subject to the laws of the land in which they reside. Property is secured with boundaries. Armies and business organizations are subject to internal and external rules of order and discipline.
Flawed human nature and unrestrained power are a dangerous combination. Just this century while 34,000,000 have been tragically killed by wars, 120,000,000 have been killed by their own oppressive governments.
If constitutional norms diffuse, so might constitutional review, as drafters seek to achieve
conformity with international norms (Stone Sweet 2008).
While there is no lack of theories, little is known in an empirical and systematic way about
the origins and evolution of constitutional review on a global scale. None of the theories have been
systematically tested against each other using quantitative empirical methods, and in particular, there
has been almost no effort to apply theories of norm diffusion to the adoption of constitutional
review. This article takes up these challenges. Drawing on an original data set on 204 countries since
1781, we are in a unique position to empirically document the historical trajectory of constitutional
review. We then use this data to test which of the theories appear to provide the best explanation for
the spread of constitutional review around the globe over the past two centuries.
We find that the adoption of constitutional review is best explained by domestic politics, and
in particular, uncertainties in the electoral market. More specifically, we find that electoral
competition, as measured by the difference between the proportion of seats held by the first and
second parties in the legislative branch, predicts the adoption of constitutional review. This
phenomenon, we find, is present in autocracies and democracies alike.
Ideas have consequences and the answers to these questions carry exceedingly vast ramifications not only for government, but for all of society. How society answers them will determine the form of government that we will live under. If we are to be successful, we must bring these fundamental principle consistently, systematically and optimistically back to the forefront of the political debate. He who controls the ideological forces controls the political forces.
Conservatives must begin acting rather than reacting. The voice of conservatism must be heard as more than just a voice of protest in time of crisis. For to long conservatives have accepted loosing ground as inevitable and stalemate as victory while their humanist socialist opponents accept nothing less than steady gains.
Constitutional review originated in the American colonial charters and state constitutions,
which were used by colonial judges to disapply laws even before the establishment of the federal
government (Prakash and Yoo 2003). The U.S. Constitution is not explicit about whether federal
courts have the power to strike down statutes incompatible with the Constitution, but many scholars
believe that the founding fathers assumed this would be the case (Snowiss 1990; Treanor 2005).
Indeed, Alexander Hamilton (1788) famously devoted much of Federalist 78 to justifying the
practice.2 After Marbury v. Madison, 5 U.S. 137 (1803), there was no doubt that the federal courts
could dis apply federal statutes, though, for many years, courts devoted most of their energy to invalidating state statutes. Even if it was seldom exercised against national legislation, the power’s
existence was well-recognized by the mid-nineteenth century (De Tocqueville 1835: 28).
The American model of constitutional review is characterized by decentralized review exercised at every level of the judiciary, with a Supreme Court at the top. An important feature of
this model is that review takes place only in a concrete dispute, or a case or controversy.
3 Several Latin American countries adopted a similar form of constitutional review in the 19th century.4 It
became the dominant form of constitutional review in the early 20th century, and remains a common
mode of constitutional review today.
In contrast with this American model
A growing number of countries today have centralized
constitutional review power in a specialized constitutional court, while denying the rest of the
judiciary the power to void legislation. This centralized model of constitutional review has its
origins in the work of the great Austrian legal theorist Hans Kelsen, who used it in his design for the
1920 Constitution of the Austrian First Republic. Ordinary judges, in Kelsen’s view, were servants
of the law, and their task was limited to applying it (Kelsen 1928, as discussed in Stone Sweet
2012). Judges should not be empowered to make law, nor could they properly determine the
constitutionality of legislation. This view squarely falls within the civil law tradition which, building
on Montesquieu, envisions a strict division of labor between three branches of government, rather
than a system of checks and balances in which the different branches not only collaborate, but also
compete with each other (Merryman and Perez-Perdomo 2007). In order to preserve legislative
sovereignty (and the traditional conception of separation of powers) as much as possible, Kelsen
designed a special and more explicitly political body called a Constitutional Court, whose members
were appointed for life by the legislature to adjudicate constitutional disputes (chiefly those
involving Austrian federalism).