resignation reaffirmed the efficacy of the US constitution and marked the
decline of the so-called ‘imperial presidency’.
Constitutional control may be exerted in a number of ways, but the most
common method in countries with a written constitution is to provide for a
constitutional courtor council (in the USA the Supreme Court) which is
supposed to ensure that political institutions conform to constitutional norms.
Such bodies can vary enormously as to their effectiveness depending on the
political context. The French Conseil Constitutionel was not foreseen as being
at all powerful by the authors of the Fifth Republic’s constitution, but has
become so since the early 1980s, largely just by the determination of its
members. It is notable that all of the new democracies in Eastern Europe and
the former Soviet Union have written constitutional courts, often very power-
ful ones, into their new constitutions. In this they are much influenced by
Germany which successfully sought, in 1949, to offset its undemocratic past
with a written constitution interpreted by a strong constitutional court.
Constitutional Courts
Any written constitution, and some unwritten constitutions, can be seen as a
set of rules giving the answers to two questions. The first question concerns the
distribution ofpowerandauthorityacross political institutions, essentially
‘which body can do what?’. The second question, though not such an obvious
one, is ‘what sorts of things can any institution of the state do?’ In other words,
are there restrictions on state authority to protect various individuals’ rights?
Given the inevitability of these questions, there is a logical necessity for some
entity to act as guardian of these restrictions—to police the boundaries of
authority between institutions and to protect the rights of the individual
against intrusive action. These entities are what we mean by constitutional
courts, although they may not always be called by either word in that phrase.
In some traditions of state authority, France and the United Kingdom being,
for different reasons, examples, there has been a tendency to deny that
constitutional courts are either necessary or desirable. In such countries the
parliamentis seen as supreme over the constitution itself—the constitution
simply refers to a set of conventions largely obeyed, which support the ultimate
authority of the parliament. This approach, which goes hand in hand with
denouncing anyjudicialization of politics, is only manageable if the system
stays purely one of supreme parliamentary sovereignty. Any restrictions intro-
duce the need for the boundary policeman described above. Thus, when the
constitution to the FrenchFifth Republicsought to limit the powers of
parliament, and strengthen theexecutive, it was found necessary to include a
constitutional court, the Conseil Constitutionel (even if it was originally
intended to be weak and limited in its scope). Similarly, when the lengthy
Constitutional Courts