Why Federal Systems Develop Constitutional Courts

• In Event: Constitution Making and Constitutional Courts

Abstract

This paper argues that some federal systems develop constitutional courts because member governments recognize the need for an institution that can resolve disputes about the boundaries of federal authority at low-cost. Because member governments can negotiate over judicial design criteria ex-ante, such as jurisdiction and appointment procedures, they become willing to adhere to judicial decisions ex-post, even when the decisions are adverse to their interests. The paper illustrates the theory with a historical case study of the early American federal judiciary. Bargains struck during the Constitutional Convention, and the First Congress over the federal judiciary’s design helped stabilize the newly formed United States. Newly formed federal courts helped resolve controversies over federal taxation, the peace treaty with Britain, and internal insurrection. This occurred even though the early United States lacked other federalism-promoting institutions, such as integrated political parties. The paper suggests a modification to the literature, arguing that constitutional courts are adopted to entrench specific policy outcomes against revision. When relevant actors in a federal system are allowed to negotiate over judicial design, constitutional courts will tend towards consensus decisions rather than operating in a zero-sum fashion. The case study also sheds light on the contemporary federal design problem of shifting federal courts away from causing political controversy and towards resolving it.

Author

• Aaron Spikol, Stanford University