A Constitutional Court for the 21st Century: The challenges of the constitutional jurisdiction in Spain

Abstract

Currently, the jurisdictional model of constitutional justice has been universalized and, at the same time, an increase in its functions has been taking place. This has generated the «counter-majority difficulty» of some doctrinal sectors that question an alleged lack of democratic legitimacy of the constitutional justice bodies. Despite the fact that our Constitutional Court originally enjoyed a high degree of acceptance by all (largely due to the fact that it had been established, like the Tribunal of Guarantees of the Second Republic, after a period of dictatorship) in The last decade has had to face the discredit campaign orchestrated against him by the Catalan independence political class, the lack of prudence (also in the writing of private votes) that some magistrates have recently shown, the denaturation that supposed the functions to he attributed by LO 15/2015, the aggravation of some configuration problems that dragged from its origin (among which stands out the collapse that, from his personal and material means, generates the treatment of all the protection resources that, even after of the approval of LO 6/2007, continue to be registered every year at the headquarters of the Court), and the political-legal problems caused by l way of renewal of magistrates. This paper aims to offer a theoretical and comparative perspective of the challenges of constitutional justice at a global level that serves as a basis for reflection on our Constitutional Court and the possible improvements that, after forty years of operation, it might be advisable to bring finished. Specifically, the political function that, in the sense of protection of political minorities and arbitrator of territorial conflicts, corresponds to the supreme constitutional custodian has been emphasized, since the dominant legal positivism in the constitutional sciences of our country has impeded development of constitutional justice or Constitutional Procedural Law as a scientific discipline, causing the absence of a theoretical body that could serve as a legitimating shield for the Constitutional Court against the attacks recently received. Resolving the most internal issues mentioned above is essential to, a posteriori, face the two most important supranational challenges that our constitutional justice system must face: on the one hand, its insertion into a European system of protection of rights , for which he will have to be more favorable to the dialogue with the Court of Justice of the European Union than he has done in the past; on the other, redefine its position as guarantor of rights before the new roles (including control of conventionality) assumed by ordinary judges and courts.

Summary:

I. INTRODUCTION. II. THE PERMANENT DEBATE ABOUT CONSTITUTIONAL JUSTICE. III. THE TRIUMPH OF THE JURISDICTIONAL MODEL AND THE STRENGTHENING OF THE COMPETENCES OF THE SPANISH CONSTITUTIONAL COURT. IV. THE (OFTEN FORGOTTEN) POLITICAL FUNCTION OF CONSTITUTIONAL JUSTICE. V. THE NEED TO DEVELOP AN AUTHENTIC CONSTITUTIONAL PROCEDURAL LAW IN OUR COUNTRY. VI. CRITICS AND RECELS (INTERNALS AND EXTERNALS) TO THE COURT' ACTIONS. VII. THE PENDING IMPROVEMENTS OF OUR CONSTITUTIONAL JUSTICE SYSTEM. VIII SPECIAL REFERENCE TO THE PERMANENT PROBLEM OF AMPARO. IX. CONCLUSIONS