Confronting epistemic panjudicialism

the scotomization of political forms of constitutional control

Abstract

The development of the contemporary constitutional state leads constitutional scholars to concentrate on the jurisdictional control of constitutionality. However, this tends to hide or scotomize other, political, ways to ensure the guarantee of the constitution. The political control of constitutionality belongs to an important stage of the trajectory of current constitutionalism. It is related to an experience, a culture and an original memory. In addition, the debates about the legitimacy of constitutional judges lead to recent proposals to «take the constitution away from the courts». Even if the political control of constitutionality has been supplanted by judicial control, it has not been totally eliminated by the latter. This leads to new forms of interaction between constitutional organs, making the protection of the constitution a shared competence. In order to identify part of the scotomised aspect of contemporary constitutional thought, this text proposes a cartography of this institutional form, analyzing different types of political controls of constitutionality, from those exercised by traditional political bodies (legislative bodies or executive bodies) to more original bodies such as a member state of a federation, an ad hoc authority or, finally, the people themselves.