Constitutional Courts and Parliamentary Democracy (Special Issue on Delegation)

Abstract

Constitutional judges possess broad powers to govern, in conjunction with other state officials, by virtue of an explicit act of delegation. In the terminology of delegation theory, constitutional courts are agents. These courts, when considered as functional solutions to the mixed dilemmas of contracting and commitment, appear to conform, paradigmatically as it were, to the delegation theorist’s preferred logic of institutional design. This article explores this formulation critically, in light of the themes laid out in the introduction, and in light of the deep transformations of parliamentary governance now taking place in Europe as a result of the diffusion of constitutional review. The discussion proceeds in three parts. The first examines the organisational logic of conferring constitutional review authority on a specialised court, rather than on the judiciary as a whole. By constitutional review, is meant the authority to evaluate the constitutionality of public acts, including legislation, and to annul those acts as unlawful when found to be in conflict with the constitutional law. I then turn to constitutional politics, the sources and consequences of conferring review powers on a state organ. The second part focuses on formal elements of the delegation of powers to constitutional courts. Following Majone, I argue that the agency metaphor that animates standard Principal–Agent (P–A) research on the politics of delegation is less appropriate than a metaphor of trusteeship, given that relevant ‘political property rights’ have, for all practical purposes, been transferred to constitutional judges. The third part summarises the major outcomes of constitutional politics, providing an explanation of the most important similarities and differences among my four cases. This explanation does not rely on concepts provided by delegation theory, per se.