I know the Supreme Court of the United States will hear constitutional matters, but why does United States not have a judicial branch specifically for constitutional matters?

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    Because it makes no sense? Name a case that only has to do with 'constitutional matters', or that has nothing to do with 'constitutional matters'. The very basis for any law are constitutions. Commented Dec 10, 2022 at 19:16
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    @JasonGoemaat that's how it's done in France, and I suspect many other legal systems. That's called the law-screen theory : the judge only applies the law, and if someone challenges the law against the constitution, it's taken up to the constitutional council, the sole body able to adjudicate on that question. Commented Dec 11, 2022 at 23:21

4 Answers 4


Why does the one country that promotes constitutional democracies above all others not have a judicial branch specifically for those matters? I know SCOTUS will hear these matters . . . I have had it mention that SCOTUS hears less than a hundred cases a year. Something which sounds incredibly low.

A constitutional court profoundly limits the extent to which relief for violations of the constitution are judicially reviewable relative to the U.S. status quo.

All courts from traffic court on up hear these matters and adjudicate constitutional issue in the status quo.

It is also helpful to recognize that the U.S. Constitution regulates government conduct, not necessarily only though the device of determining that legislation is or is not constitutional.

If a police officer stops you without having reasonable suspicion to do so, he has violated the U.S. Constitution, without regard to what the statutes of the state in question say.

If evidence is seized without probable cause and this evidence is introduced in court over your objection in a criminal case, the government has violated the constitution and you are entitled (unless it was harmless error) to have your conviction vacated.

If a tax collector seizes your property for unpaid taxes without first affording you due process to dispute their right to do so, the government has violated one of your constitutional rights.

The Constitution imposes affirmative duties and obligations on the government, it does not merely invalidate laws enacted as unconstitutional.

Most instances of constitutional adjudication involve government conduct and not the validity of government enacted statutes.

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    "If a police officer stops you without having reasonable suspicion to do so, he has violated the U.S. Constitution, without regard to what the statutes of the state in question say." Qualified immunity has entered the chat.
    – Federico
    Commented Dec 10, 2022 at 23:27
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    @Federico The right not to be stopped without reasonable suspicion is a clearly established constitutional right to which qualified immunity does not apply, and if it is raised as a defense to a conviction it also doesn't apply.
    – ohwilleke
    Commented Dec 10, 2022 at 23:37
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    You might want to update (or remove) the quote since the question has been edited drastically.
    – Andrew T.
    Commented Dec 11, 2022 at 1:12
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    @Federico Qualified immunity applies to suing a police officer. It doesn't applying to objecting to unconstitutional conduct. Commented Dec 11, 2022 at 22:56
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    @AndrewT. One of the reasons that I quote questions is so my answer can still make sense even if the question changes.
    – ohwilleke
    Commented Dec 12, 2022 at 16:08

Wikipedia says the first constitutional court per se was established in Austria in 1919. So that accounts for why the US didn't have one at its founding: they hadn't been invented yet.

In fact, in the early days of the nation, it wasn't clear whether the Supreme Court, or any other court for that matter, had the authority to rule on the constitutionality of laws ("judicial review"), not even the Supreme Court. The main intended remedy in case Congress passed an unconstitutional bill was that the President should veto it. (And apparently until Andrew Jackson or so, the veto was used mainly for that purpose, and not to kill bills that the President simply didn't support politically.) The power of judicial review by courts was established by the Supreme Court itself in Marbury v. Madison (1803).

If the US had wanted to establish a constitutional court after seeing Austria's, it would have required a constitutional amendment. And if you have studied American political history at all, you will have some idea of how rarely that succeeds. There have only been sixteen amendments since 1800, and only maybe one or two of them enacted any kind of significant change to the structure of government.

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    Indeed, only a few constitutional courts predate WWII.
    – ohwilleke
    Commented Dec 9, 2022 at 23:40
  • 18th and 21st amendment excluded?
    – Trish
    Commented Dec 9, 2022 at 23:58
  • Madison v Marbbury was the fist exersize of judicial review, but that it woudl be part of the system was made clear in The Federalist and the ratification debates. What was disputyesd was review of statenlaws and state cvourt actions, but that was soon establiushed Commented Dec 10, 2022 at 0:06
  • @DavidSiegel It wasn't even the first exercise, it was just the first one to get national attention. The first exercise of judicial review by SCOTUS in evaluating the constitutionality of an act of Congress was Hylton v. United States (1796).
    – Idran
    Commented Dec 12, 2022 at 19:17
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    @Justin Hilyard In Hylton v. United States the Supreme Court here a challenge to an act imposing a tax on carriages on the ground that it was a direct tax and so requires apportionment among the states. It held the tax to be indirect, The decision did not clearly say that if the tax had been direct the law would have been invalid. In any case Marbury v. Madison (1803) was the first occasion on which the Court actually voided an act of Congress as being contrary tomthe Constitution. Commented Dec 12, 2022 at 19:44

Most of the ""Why is the US constitution/way of doing democracy weird compared to other constitutional democracies" comes down to the age of the document/democracy. We're still functioning on a system that was originally created in the 18th century and only went through a few major revisions through amendments in the 18th and 19th century. It is very hard to change the system in place.

Other democracies are much younger and have had the benefit of learning from experience, thus they have set up more modern systems to begin with.

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    To whit, the United States isn't just a very old constitutional document, it's at present the oldest extant codified constitution in the World, and having such a document didn't become a popular thing among the nations until after WWII (and a lot of constitutions borrowed a lot of features from the United States Constitution and modified others to better fit their national government systems or updated language that removed some of the ambiguities that the U.S. Constitution has had to deal with through the court system.).
    – hszmv
    Commented Dec 9, 2022 at 19:08
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    The U.S. Constitution is also one of the shortest constitutions of it's type.
    – hszmv
    Commented Dec 9, 2022 at 19:10
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    Indeed. E.g. the German Grundgesetz ("Basic Law"), our Constitution, was written in the late 1940s, with US Constitutional Scholars consulting. So, it incorporates 160 years of "lessons learned". Of course, the US Constitution will look "weird" and "dated" next to it. That's like comparing a Benz Motorwagen with a Rimac Nevera or the Wright Flyer with the B-21 Raider: you can kind of see how one evolved from the other, but the old one looks dated, haphazard, and inefficient. Commented Dec 10, 2022 at 10:07
  • @hszmv While the US Constitution is the oldest codified constitution of a sovereign state, it is not the oldest codified constitution in existence. Several US states have older constitutions still in effect. The US Constitution was ratified in June of 1788 and effective March of 1789. The current Constitution of Massachusetts was ratified and effective in October of 1780, almost nine years prior. Commented Dec 12, 2022 at 16:25

The reason for this is all courts in the U.S. are able to hear constitutional matters and rule on them. Any court at or below the level of the court that makes the ruling is expected to abide by that ruling unless and until a higher court rules differently. The Supreme Court of the United States holds the distinction of being the highest court in the United States, which means that the decision they make cannot be appealed to another court system and must be abided by unless SCOTUS overturns itself or the law/constitution is changed (a few amendments to the constitution, like the 13th, overturn a number of SCOTUS rulings on slavery for example, if only to make them moot because slavery was outlawed).

So a trial court judge can make a ruling on the constitution at the beginning. It might be incorrect, but the appeals courts will handle that and until they say otherwise, that's the interpretation of the constitution that is used for that court system.

Typically, from least to highest level, courts are as follows:

  1. Court of Original Jurisdiction/Trial Court (State or Federal. If Federal, skip steps 2-4).
  2. State Appeals Court
  3. State Appeals Court (En Banc Panel)
  4. State Supreme Court
  5. Federal District Appeals Court
  6. Federal District Appeals Court (En Banc Panel)
  7. Supreme Court of the United States

Additionally, in the United States, you have a right to one guaranteed appeals hearing (called mandatory review) unless you are a prosecutor (in which case you have very little and rare right to an initial appeal. Prosecutors may appeal the initial appellate court rulings). Everything above a first level appellate court hearing is discretionary review, which means that the courts are not obligated to hear your appeal (if you are rejected, you may appeal to a higher court if one exists, however, the lower court ruling stands.).

The first level of federal appeals is mandatory for cases originating in federal courts, but is discretionary for appeals of state courts (at this point, they'd only be looked at if there is a conflict with the state and federal law).

On a note about "en banc" panels, the en banc panel is a review on the first level appeals court by the appeals, typically a first level appeal will be heard by a panel of three judges of the appeals court, who will make their rulings. The en banc panel is made of a larger group of the appeals court judges, not including the judges who heard the first appeal.

At the federal level, the states are divided into 11 "circuits," and a ruling by any level of the circuit court of appeals is binding on all states in that circuit (so if a case that originates in California is ruled on by the 9th circuit, then it will change the outcome of similar cases in Alaska and courts may remand the cases to lower courts to make a decision because Alaska is also in the 9th circuit).

This means that there are times where some states have different interpretations of the constitution that they must adhere to because their circuit court ruled differently, and still other states may have judges who have to consider both rulings when making a determination and try to find the best of both. When this happens, it's called a "circuit split," and while no case has a guarantee that SCOTUS will hear it, it's a very good chance that SCOTUS will have a strong interest in taking up the case as their ruling will be the final ruling for all states.

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    Also, it is confusing to use the term "district" rather than "circuit" to describe the devisions of the United States Court of Appeal because the term district is used to refer to the trial court divisions of the federal judiciary. Similarly, the splits are always called "circuit splits" and are never called "district splits."
    – ohwilleke
    Commented Dec 9, 2022 at 21:06
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    "you have a right to one guaranteed appeals hearing (called Mandatory Review)" FWIW, this is a statutory right but is not a constitutional right. There is not a constitutional right to a direct appeal of a case, although there is a right to a petition for habeas corpus in criminal cases collaterally attacking a conviction on grounds much more narrow than those available in a direct appeal (historically, lack of jurisdiction or an acquittal, but now also unconstitutionality). The statutory right to a direct appeal in U.S. federal criminal cases was only created in 1891.
    – ohwilleke
    Commented Dec 9, 2022 at 21:12
  • Also, a case often goes from a federal district court to a circuit court and then to the supreme court, skipping an en banc stage Commented Dec 9, 2022 at 23:59

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