Supremacy of the Constitution, Separation of Powers, and Judicial Review in Nineteenth-Century German Constitutionalism

Abstract.   Judicial review of statutes presupposes the establishment of a clear hierarchical supremacy of the constitution, which can serve as a standard of review, as well as an independent and assertive judiciary. The conditions for such a hierarchical supremacy of the constitution were only partly fulfilled in nineteenth-century Germany. In addition, the concept of the separation of powers was rejected and the judiciary was in a weak position. Therefore the judicial review of ordinances was slow to develop. The judicial review of statutes began only at the end of the nineteenth century and was restricted to formal review as opposed to a review of the content of statutes.