Dietrich Schindler, Richterliches Prüfungsrecht und politischer Mehrheitswille, Erfahrungen der Vereinigten Staaten – Folgerungen für die Schweiz, Zeitschrift für Schweizerisches Recht (ZSR) 1955 I 289-313
Dietrich Schindler – Richterliches Prüfungsrecht und pol. Mehrheitswille
Background
Despite a rejection of the possibility of filing law suits against federal laws on grounds of constitutionality in 1874, there was no lack of initiatives to introduce such review and powers for the Federal Supreme Court. The passage cited below from the 1950s was written by Dietrich Schindler Jr., Professor of International Law and Constitutional Law at the University of Zurich. He sat on various international committees, in which fruitful lessons for the development of Swiss law were learned in particular from the practices of the US Supreme Court at the time.
Summary
By way of introduction the author points out that in Switzerland the right to judicial review is regarded as a matter of exercising paternalistic control over the people and their representatives. This is juxtaposed with calls for effective protection of fundamental rights guaranteed in the Constitution – federalism, democratic rights, individual freedoms. In view of these contradictory attitudes, the author’s aim is to examine new considerations of a practical nature: What have the responses of the legislator and the public at large been to laws being judicially declared unconstitutional? How has the will of the political majority been influenced by the mere existence of the judicial right of review? Research revealed that in the US only about a quarter of all cases concerned laws considered important by the parliamentary majority. In those cases, ways were sought to achieve the desired outcomes through constitutionally compliant measures. Amendment of the Constitution was brought about in very few cases. Otherwise the Supreme Court sooner or later changed its rulings. The will of the clear majority thus ultimately proved to be stronger than the rulings of the Supreme Court. The majority of American commentators see the value of the judicial right of review as being of preventive influence exercised by the courts. The author’s investigation however indicates that the judicial right of review can do little to thwart the will of a distinct majority. Thus like many US commentators, the author sees the value of the power of judicial review as being a factor that strengthens the constitutional awareness of the people. In the opinion of the author, constitutional breaches are less frequent in Switzerland than in the US because the provisions on allocating powers in the Swiss Constitution are more detailed, leaving the Federal Supreme Court with less interpretational leeway. The Federal Supreme Court’s rulings are more consistent in regard to equality of rights and freedoms, it is argued, and the Court exercises more restraint in its constitutional jurisdiction over the cantons than the US Supreme Court does over the American states. If a law is declared unconstitutional in Switzerland, in contrast to the US, it is possible to amend the constitution in legislative response without major difficulty if the law actually reflects the will of the majority and is of substantial importance. Thus the court does not have the final say based on its powers to review federal legislation. This rather lies with the legislature which adopts the constitution. In most cases however, the legislature will enact laws in conformity with the constitution. A special provision would have to be implemented however for laws passed by referendum vote. Judicial right of review over federal laws could shield political authorities from accusations of breaching the constitution without the Federal Supreme Court being accused of engaging in political law making through its rulings, as court decisions are made according to different criteria than are applied by Parliament. Constitutional jurisdiction over federal laws would heighten legal awareness, reminding the people of the values upheld in the Constitution.