The European Court of Justice and Process-Oriented Review

Abstract

Structuralism is a theory of US constitutional adjudication according to which courts should seek to improve the decision-making process of the political branches of government so as to render it more democratic. 1 In the words of John Hart Ely, courts should exercise their judicial review powers as a ‘representation-reinforcing’ mechanism. 2 Structuralism advocates that courts must eliminate the elements of the political decision-making process that are at odds with the structure set out by the authors of the US Constitution. The advantage of this approach, US scholars posit, lies in the fact that it does not require courts to second-guess the policy decisions adopted by the political branches of government. Instead, they limit themselves to enforcing the constitutional structure within which those decisions must be adopted. Of course, this theory of constitutional adjudication, like all theories, has its shortcomings. For example, detractors of structuralism argue that it is difficult, if not impossible, to draw the dividing line between ‘substantive’ and ‘structural’ matters. 3 In particular, they claim that, when identifying the ‘structure’ set out by the authors of the US Constitution, courts necessarily base their determinations not on purely structural principles, but on a set of substantive values, evaluating concepts such as democracy, liberty, and equality. 4