# How Constitutional Courts Work

> On 30–31 October 2026, a power struggle broke out at Poland's Constitutional Tribunal, with each side accusing the other of acting unlawfully. This film explains the fundamentals behind such courts: why a constitution is higher law, how the US Supreme Court claimed the power of judicial review in Marbury v. Madison (1803), how Hans Kelsen designed a dedicated constitutional court for Austria in 1920, how that model spread after the Second World War, the doors by which a law reaches such a court, how judges are chosen and why terms are long and single, the debate over unelected judges overruling elected majorities, and how Thailand's and Poland's courts are built.

Interactive film: https://www.planetpast.com/stories/how-constitutional-courts-work/  
Publisher: PlanetPast (https://www.planetpast.com/) · d => T('readPublished', l, { d: dateIn(d, l) }) 2026-11-01 · Society, History

## Prologue

### Who has the last word?
*Society · History*

How constitutional courts work, and why they are fought over.

On the night of 30 October 2026, riot police held back protesters outside Poland's Constitutional Tribunal in Warsaw. Inside, a judge elected by parliament this year, whose status the president and the court's leadership do not recognise, announced that the court's president and his deputy were suspended for a month. The president's office called it a forcible takeover of a constitutional body. The prime minister wrote that restoring the rule of law requires decisive action. This film takes no side. It asks what a constitutional court is, why so many democracies have one, and why who sits on it matters so much.

![An illustration of a police cordon at night, not a photograph of the real scene. AI-generated image.](https://assets.planetpast.com/a/72/72a9280696bf0ca8.jpg)

- Anna Korwin-Piotrowska: one of five judges elected in 2026 who took the oath without the president
- Bogdan Święczkowski: the tribunal’s president
- Karol Nawrocki: president of Poland
- Donald Tusk: prime minister

- President’s office: “a forceful takeover of a constitutional body” (Notes from Poland)
- Government: restoring the rule of law “requires decisive action” (Donald Tusk)

- Higher law and the first judicial review, 1803
- Kelsen’s court, Austria 1920
- How judges are chosen, and the debate
- Thailand and Poland today

Prologue

#### The crisis in Warsaw

Al Jazeera (31 October 2026): on Friday evening Judge Anna Korwin-Piotrowska announced one-month suspensions of the tribunal’s president Bogdan Święczkowski and deputy Bartłomiej Sochański and said she was taking over its running; hundreds protested outside, riot police were deployed and three people were arrested trying to enter the complex. Notes from Poland (31 October 2026): she is one of five judges elected by parliament in 2026 whom President Karol Nawrocki refused to swear in and who took their oaths without him; Nawrocki, on entering the building overnight, was heard saying “you are not Constitutional Tribunal judges”, and his chief of staff read a statement calling the night “a forceful takeover of a constitutional body”. Prime Minister Donald Tusk posted that restoring the rule of law “requires decisive action”. Euronews (31 October 2026) reports that the tribunal’s leadership has challenged the legality of the moves.

The film returns to Poland at the end. Events were still unfolding when it was made; check current reporting.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Al Jazeera (31 Oct 2026): Protests outside Poland’s Constitutional Court, what’s the crisis about?](https://www.aljazeera.com/news/2026/10/31/protests-outside-polands-constitutional-court-whats-the-crisis-about); [Notes from Poland (31 Oct 2026): Polish president in physical confrontation with judges amid power struggle at Constitutional Court](https://notesfrompoland.com/2026/10/31/polish-president-in-physical-confrontation-with-judges-amid-power-struggle-at-constitutional-court/); [Euronews (31 Oct 2026): Poland political crisis, Constitutional Court in chaos as Nawrocki accuses government](https://www.euronews.com/2026/10/31/poland-political-crisis-constitutional-court-in-chaos-as-nawrocki-accuses-government-of-st)

## Chapter I · Higher law

### Higher law
*Chapter I · Higher law*

The rulebook for making the rules.

A constitution is the rulebook for making all the other rules, and it is higher law: America's founders made theirs the supreme law of the land, and deliberately hard to change. The Austrian jurist Hans Kelsen pictured law as a pyramid. A fine is valid because a bylaw allows it, the bylaw because a statute does, the statute because the constitution does. So who says when a law breaks the constitution? In 1788 Alexander Hamilton answered: the judges. Of the three branches of government, lawmakers, executive and courts, he called the courts the least dangerous, with neither force nor will, but merely judgment. Checking laws against the constitution in this way is called judicial review.

> The Constitution is “the supreme law of the land”. (US National Archives, introducing the Constitution)

![Kelsen’s German word for the idea means “stepped structure”. AI-generated image.](https://assets.planetpast.com/a/e9/e9e54717eb6775ed.jpg)

![Hamilton’s essay, Federalist No. 78, argued for ratifying the new US Constitution. AI-generated image.](https://assets.planetpast.com/a/41/41619812259802b9.jpg)

> “the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” (Alexander Hamilton, Federalist No. 78, 28 May 1788)

Chapter I · Higher law

#### A constitution is higher law

The US National Archives describes the Constitution as “the supreme law of the land”; one route to amending it, under Article V, is a proposal by two-thirds of both houses of Congress, ratified by three-fourths of the states (the other route is a convention called by two-thirds of the states). Kelsen’s hierarchy of norms (Stufenbau) treats law as a pyramid in which each norm takes its validity from a higher one: an officer’s fine from a municipal bylaw, the bylaw from a statute, the statute from the constitution (LexPlug summary of the Pure Theory of Law). Federalist No. 78 (Alexander Hamilton, 28 May 1788) argues that the judiciary “will always be the least dangerous to the political rights of the Constitution”, having “neither FORCE nor WILL but merely judgment”, and that where a statute and the Constitution conflict, “the Constitution ought to be preferred to the statute”.

Try it: test a new law that fits the constitution, then one that clashes with it.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [US National Archives: The Constitution, what does it say?](https://www.archives.gov/founding-docs/constitution/what-does-it-say); [LexPlug: Hans Kelsen and the Pure Theory of Law (hierarchy of norms)](https://www.lexplug.com/outlines/jurisprudence/hans-kelsen-the-pure-theory-of-law); [Federalist No. 78 (Alexander Hamilton, 1788), text at the American Presidency Project](https://www.presidency.ucsb.edu/documents/federalist-no-78-the-judiciary-department); [Teaching American History: Federalist No. 78](https://teachingamericanhistory.org/document/federalist-no-78/)

## Chapter II · Any court can say no

### Any court can say no
*Chapter II · Any court can say no*

Marbury v. Madison, 1803.

The idea was tested in 1803. In his last days in office, President John Adams appointed William Marbury a justice of the peace, but the commission was never delivered. The new president, Thomas Jefferson, had his Secretary of State, James Madison, hold it back, and Marbury asked the Supreme Court to order its delivery. Chief Justice John Marshall ruled that Marbury had a right to his commission, but that the law letting him go straight to the Supreme Court conflicted with the Constitution. So the Court would not apply that law, and Marbury never received his commission. The Court gave up a small power and claimed a far larger one: to say what the law is.

![Marbury’s post was a five-year term as justice of the peace for the District of Columbia. AI-generated image.](https://assets.planetpast.com/a/f3/f3746fa29ba24f50.jpg)

- 1789: Judiciary Act, section 13
- 1800: Jefferson wins the presidential election
- 24 Feb 1803: unanimous ruling, written by Marshall

- **§ 13**: Judiciary Act of 1789: let the Court issue such orders as a first court
- **Art. III**: Constitution: limits the cases the Court hears first-hand

> “It is emphatically the province and duty of the judicial department to say what the law is.” (Chief Justice John Marshall, Marbury v. Madison)

Chapter II · Any court can say no

#### Marbury v. Madison (1803)

EBSCO Research Starters: outgoing President John Adams filled judgeships in the final days of his term; William Marbury was appointed a justice of the peace for the District of Columbia for five years but never received his commission, which Secretary of State James Madison withheld on Thomas Jefferson’s instructions. On 24 February 1803 the Court ruled unanimously, in an opinion by Chief Justice John Marshall, that section 13 of the Judiciary Act of 1789, which authorised it to issue such writs, expanded its original jurisdiction beyond Article III and so could not be applied. Marshall wrote that it “is emphatically the province and duty of the judicial department to say what the law is.”

Try it: the 3D pyramid now shows the US case. Test a law that clashes with Article III.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [EBSCO Research Starters: Marbury v. Madison](https://www.ebsco.com/research-starters/law/marbury-v-madison/)

### 

The Constitution never grants that power in so many words; many jurists argue it is implied. Marbury was the first time the Court set aside part of an act of Congress. In the American system, review is diffuse: any court, from a local judge upward, can refuse to apply a law it finds unconstitutional, and the Supreme Court has the last word. And it happens only inside a real case between real parties, which lawyers call concrete review.

- **1803**: the first: Marbury v. Madison
- **1857**: the second, in the Dred Scott case on slavery

- every court may judge a law’s constitutionality
- the apex court usually has the final word
- early examples include Canada and Australia (Wikipedia)

- **1 real case**: the question must arise in an actual dispute between parties

Chapter II · Any court can say no

#### The diffuse model

EBSCO notes that the Constitution’s text does not expressly grant the power of judicial review, which many jurists argued was implied, and that Dred Scott v. Sandford (1857) was the next time the Court struck down a federal law. International IDEA’s primer describes the diffused, or American, model: any court can conduct constitutional review, the apex court usually has the final word, and only concrete review, arising from an actual dispute, is recognised. Wikipedia’s article on constitutional courts notes that before 1919 courts in the United States, Canada and Australia practised judicial review, based on their common-law heritage from British colonial law.

Try it: switch between the diffuse and centralised examples, or step through time. The globe shows only countries named in this film.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [EBSCO Research Starters: Marbury v. Madison](https://www.ebsco.com/research-starters/law/marbury-v-madison/); [International IDEA (2017): The fundamentals of constitutional courts (Constitution-Building Primer)](https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-courts.pdf); [Wikipedia: Constitutional court](https://en.wikipedia.org/wiki/Constitutional_court)

## Chapter III · A court for the constitution

### A court for the constitution
*Chapter III · A court for the constitution*

Vienna, 1920.

Europe took another road. In 1919, Austria's chancellor Karl Renner asked Hans Kelsen to draft a constitution, and it was adopted on 1 October 1920. Kelsen did not want every judge striking down laws. He gave that power to one body, a constitutional court standing apart from the ordinary courts. Czechoslovakia's constitution of February 1920 also provided for such a court. Which came first is still debated, but Austria's became the model. Kelsen served on the court until 1930, and called that part of the constitution the work that mattered most to him.

- 1919: Renner asks Kelsen to draft a constitution
- 29 Feb 1920: Czechoslovakia adopts its constitution
- 1 Oct 1920: Austria adopts its constitution
- 1921: the Czechoslovak court first convenes

- only one court may annul a law
- ordinary judges send their doubts to it
- its ruling applies to everyone, not just to one case

> “the first two constitutional courts in the true sense of the term” (Constitutional Court of the Slovak Republic, on Austria and Czechoslovakia)

> The part of the constitution that “mattered most” to him: the court’s power to review laws. (Kelsen, as reported by the Library of Congress)

Chapter III · A court for the constitution

#### Kelsen’s constitutional court

Library of Congress (2020): Chancellor Karl Renner asked Hans Kelsen to draft the Austrian constitution in 1919; the Federal Constitutional Law was adopted on 1 October 1920 and created a constitutional court with power to review legislation. Kelsen sat on the court until 1930 and called this part of the law the work that “mattered most” to him; the “Austrian model” later inspired many countries. Czechoslovakia’s constitution was adopted on 29 February 1920 (Czech government); its constitutional court first convened in November 1921 (Wikipedia). The Constitutional Court of the Slovak Republic notes that Austria and Czechoslovakia set up “the first two constitutional courts in the true sense of the term” and that which came first has “no definitive answer”, while Austrian influence was dominant. Spain’s constitution (section 164) shows one consequence of the centralised model: a ruling that a law is unconstitutional binds everyone.

Try it: in this model the beam comes from the dedicated court, not from every court.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Library of Congress, In Custodia Legis (2020): 100-year anniversary of the Austrian Constitution](https://blogs.loc.gov/law/2020/10/100-year-anniversary-of-the-austrian-constitution/); [Office of the Government of the Czech Republic: the 1920 Constitution](https://uv.gov.cz/en/media-centrum/aktualne/the-1920-constitution-68721/); [Constitutional Court of the Slovak Republic: brief history](https://ustavnysud.sk/en/home/constitutional-court/brief-history); [Wikipedia: Constitutional court](https://en.wikipedia.org/wiki/Constitutional_court); [La Moncloa: Spanish Constitution, Part IX, The Constitutional Court](https://www.lamoncloa.gob.es/lang/en/espana/leyfundamental/paginas/titulo_noveno.aspx); [International IDEA (2017): The fundamentals of constitutional courts (Constitution-Building Primer)](https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-courts.pdf)

### 

These courts spread across Europe only after the Second World War, as countries rebuilt their democracies. West Germany's Federal Constitutional Court opened in Karlsruhe on 28 September 1951. Its founders wanted a strong court to protect individual rights and the democratic process. Italy's court held its first public hearing in April 1956. Spain's constitution of 1978 created one, and Poland's tribunal began work in 1986, under communist rule. Today, according to the democracy institute International IDEA, about eighty-five countries have such a court.

![A European city rebuilding in the 1950s. AI-generated image.](https://assets.planetpast.com/a/45/4514e3c205eff0cd.jpg)

- **2**: senates, panels of judges: 12 each at first, later 8
- **Final**: its decisions are binding and cannot be appealed

- 1956: Italy: first public hearing, 23 April
- 1978: Spain’s constitution creates its court
- 1986: Poland: judges take office on 1 January

- **≈85**: countries with a constitutional court or similar body
- **61**: member states of the Venice Commission, which advises on constitutions (since 1990)

Chapter III · A court for the constitution

#### After the Second World War

Castillo-Ortiz (Georgetown Journal of International Affairs, 2020) writes that after Austria’s court of 1920, constitutional courts “did not begin to disseminate across the European continent until after the Second World War”. The Deutschland Museum records that the Federal Constitutional Court opened in Karlsruhe on 28 September 1951 with two senates (twelve judges each at first, later eight); its decisions are binding and cannot be appealed, and its founders wanted a strong body to protect individual rights and the democratic process. Italy’s Constitutional Court held its first public hearing on 23 April 1956 (Corte costituzionale). Poland’s tribunal was created by a 1982 amendment to the constitution of the People’s Republic; its judges took office on 1 January 1986 (Wikipedia). International IDEA counts about 85 countries with such bodies. The Council of Europe’s Venice Commission, its advisory body on constitutional matters, was set up in 1990 after the fall of the Berlin Wall and has 61 member states; its opinions are advisory, not binding (Council of Europe; Wikipedia).

Try it: step through time to watch the examples appear. Founding years follow the sources above; the globe is not a complete list.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Castillo-Ortiz, Georgetown Journal of International Affairs (2020): Constitutional courts, democracy and judicial independence in Europe](https://gjia.georgetown.edu/2020/04/28/constitutional-courts-democracy-judicial-independence-in-europe/); [Deutschland Museum: opening of the Federal Constitutional Court, 28 September 1951](https://www.deutschlandmuseum.de/en/?p=22251); [Corte costituzionale: the Italian Constitutional Court](https://www.cortecostituzionale.it/jsp/consulta/istituzioni/la_corte_costituzionale_italiana_EN.do); [La Moncloa: Spanish Constitution, Part IX, The Constitutional Court](https://www.lamoncloa.gob.es/lang/en/espana/leyfundamental/paginas/titulo_noveno.aspx); [Wikipedia: Constitutional Tribunal (Poland)](https://en.wikipedia.org/wiki/Constitutional_Tribunal_(Poland)); [International IDEA (2017): The fundamentals of constitutional courts (Constitution-Building Primer)](https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-courts.pdf); [Council of Europe: About the Venice Commission](https://www.coe.int/en/web/venice-commission/about); [Wikipedia: Venice Commission](https://en.wikipedia.org/wiki/Venice_Commission)

## Chapter IV · Three doors to the court

### Three doors to the court
*Chapter IV · Three doors to the court*

How a law gets checked.

How does a law reach a constitutional court? Most systems use some of three doors. The first is abstract review, with no dispute at all. In Germany, the federal government, a state government, or a quarter of the members of the Bundestag, the lower house, can ask the court to check a law. The second is a referral from a real case. In Germany, a judge who needs a law to decide a case and is convinced it is unconstitutional must pause the case and send the question up. The third is the constitutional complaint: anyone who says a public authority violated their basic rights can file one. In Germany only about two and a half percent have succeeded since 1951.

- politicians or officials, with no dispute
- a judge, from a real case
- a person whose rights were violated
- International IDEA counts four routes; the first two are merged here

- **¼**: of the Bundestag, in Germany
- **50**: deputies or 50 senators, or the Ombudsman, in Spain

- abstract: a law examined without any dispute, sometimes before it takes effect
- concrete: the question arises in a real case
- in Spain a referral does not suspend the law meanwhile

- **135,968**: filed, 1957–2002
- **≈2.5%**: succeeded since 1951

![Spain’s version, amparo, is open to any person or body with a legitimate interest. AI-generated image.](https://assets.planetpast.com/a/f2/f26143f253cda5a6.jpg)

Chapter IV · Three doors to the court

#### Who can bring a case

Wikipedia’s article on Germany’s Federal Constitutional Court: in abstract review, the federal government, a state government or one quarter of the members of the Bundestag may bring a law before the court; in concrete review under Article 100(1) of the Basic Law, a court that considers a law it must apply to be unconstitutional must suspend the proceedings and refer it; any person may file a constitutional complaint alleging that their basic rights were violated (135,968 were filed from 1957 to 2002, and about 2.5% have succeeded since 1951). Spain’s constitution (sections 161–164) lets the prime minister, the Ombudsman, 50 deputies, 50 senators and regional executives lodge an appeal of unconstitutionality; lets a judge refer a question, which “shall in no case have a suspensive effect”; and opens amparo to any individual or body corporate with a legitimate interest. International IDEA lists four usual routes: official reference (such as the speaker, ombudsman or president), legislative reference, judicial reference and individual petition.

Try it: pick a door. In the model, a challenge by politicians or a person ends in the law being annulled and a judge’s referral ends with it upheld, to show both outcomes; real outcomes depend on the case. At the end of the step, letters stream in: about one in forty turns green, to show the scale of 2.5%.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Wikipedia: Federal Constitutional Court (Germany)](https://en.wikipedia.org/wiki/Federal_Constitutional_Court); [La Moncloa: Spanish Constitution, Part IX, The Constitutional Court](https://www.lamoncloa.gob.es/lang/en/espana/leyfundamental/paginas/titulo_noveno.aspx); [International IDEA (2017): The fundamentals of constitutional courts (Constitution-Building Primer)](https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-courts.pdf)

## Chapter V · Who chooses the judges

### Who chooses the judges
*Chapter V · Who chooses the judges*

Designs for independence.

A court that can overrule parliament raises an obvious question: who chooses the judges? Germany's answer: sixteen judges in two panels of eight, called senates. Half are elected by the Bundestag and half by the Bundesrat, the chamber of the federal states, each by a two-thirds majority. A supermajority, notes International IDEA, gives opposition parties some say in the choice. Each judge serves one twelve-year term, can never be re-elected, and must retire at sixty-eight. In 2024 Germany wrote these rules into its constitution, the Basic Law.

![Since 2015 the Bundestag has elected its judges by secret ballot in a full sitting. AI-generated image.](https://assets.planetpast.com/a/07/0729b3755016d769.jpg)

- **8 + 8**: judges chosen by each chamber
- **46 of 69**: votes needed in the Bundesrat

> A supermajority means “opposition parties have some say in selections.” (International IDEA)

- **12**: years, no re-election
- **68**: compulsory retirement age

- 1951: opens in Karlsruhe
- 2015: Bundestag votes by secret ballot in plenary
- 2024: changing these rules now needs 2/3 in both chambers

Chapter V · Who chooses the judges

#### Germany: choosing sixteen judges

Wikipedia (Federal Constitutional Court): 16 judges in two senates of eight; the Bundestag and the Bundesrat each select four members of each senate, by a two-thirds vote (in the Bundesrat, at least 46 of its 69 votes). Judges serve 12 years, cannot be re-elected and must retire at 68. A 2024 amendment wrote the term and age limits, the court’s autonomy and its 16-judge, two-senate structure into Article 93 of the Basic Law, so changing them now requires a two-thirds majority in both chambers. International IDEA notes that when the legislature appoints, a supermajority requirement means “opposition parties have some say in selections”.

Try it: move the clock on three years at a time, then compare with every term ending at once. Start years in the model are made up.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Wikipedia: Federal Constitutional Court (Germany)](https://en.wikipedia.org/wiki/Federal_Constitutional_Court); [International IDEA (2017): The fundamentals of constitutional courts (Constitution-Building Primer)](https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-courts.pdf)

### 

Spain staggers its court: twelve members serve nine years, and a third are renewed every three years. Press the button to see what would happen if every term ended at once. Italy splits the choice: of fifteen judges, the president appoints five, parliament elects five, and the highest courts choose five. The aim is independence. A fixed term, International IDEA notes, means a judge's tenure does not depend on the government approving of their work.

- Congress, by 3/5: 4
- Senate, by 3/5: 4
- Government: 2
- General Council of the Judiciary: 2

- **5 + 5 + 5**: president, parliament, highest courts
- **9**: year terms

> A fixed term means tenure “does not depend on executive approval of their performance.” (International IDEA, The Fundamentals of Constitutional Courts)

Chapter V · Who chooses the judges

#### Staggered terms and split appointments

Spain’s constitution, section 159: the court has twelve members appointed by the King; four on the proposal of the Congress and four of the Senate, each by a three-fifths majority, two of the Government and two of the General Council of the Judicial Power; they serve nine years, and a third are renewed every three years. International IDEA: Italy’s court has 15 judges with nine-year terms, five appointed by the President, five elected by parliament and five by the ordinary and administrative supreme courts; split appointments “tend to avoid controversy over choosing the selection mechanism” but risk judges sympathetic to “the institutional interest that selected them”; and fixed terms mean tenure “does not depend on executive approval of their performance”.

Try it: move the clock on three years and watch a third of Spain’s seats renew; then see what happens if every term ended at once.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [La Moncloa: Spanish Constitution, Part IX, The Constitutional Court](https://www.lamoncloa.gob.es/lang/en/espana/leyfundamental/paginas/titulo_noveno.aspx); [International IDEA (2017): The fundamentals of constitutional courts (Constitution-Building Primer)](https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-courts.pdf)

## Chapter VI · The great debate

### The great debate
*Chapter VI · The great debate*

Should unelected judges overrule elected lawmakers?

Not everyone thinks this is a good idea. In 1962 the Yale scholar Alexander Bickel named the problem the counter-majoritarian difficulty, in a book titled with Hamilton's words: The Least Dangerous Branch. When unelected judges strike down a law, he argued, they act against the majority of the moment, not on its behalf. Defenders answer with Hamilton: judges are there to guard the constitution and the rights of individuals from the ill humours of the moment, and the constitution is the will of the people, above that of their agents. Critics add that lawmakers can undo a court's reading of an ordinary law by passing a new one, but undoing a constitutional ruling takes a constitutional amendment. Neither side has won, and this film does not settle it.

![Bickel taught at Yale Law School from 1956 until his death in 1974. AI-generated image.](https://assets.planetpast.com/a/33/33a9483c914f77e0.jpg)

> The problem: a body that is not politically accountable “telling the people’s elected representatives that they cannot govern as they’d like.” (John Hart Ely, as summarised in the Constitution Annotated (Cornell LII))

> Judges should “guard the Constitution and the rights of individuals from the effects of those ill humors”. (Alexander Hamilton, Federalist No. 78)

- reading of an ordinary law: a new law can change it
- constitutional ruling: only a constitutional amendment
- US amendment: 2/3 of Congress, then 3/4 of the states

Chapter VI · The great debate

#### The counter-majoritarian difficulty

Alexander Bickel’s The Least Dangerous Branch (1962) introduced the term “countermajoritarian difficulty” for the conflict between judicial review and democratic principles (Wikipedia). The Constitution Annotated (Cornell LII) summarises Bickel’s view that when the Court invalidates a law it acts against the prevailing majority rather than on its behalf; it explains that the Court’s readings of statutes can be corrected by ordinary legislation while its constitutional rulings generally cannot, and quotes John Hart Ely on the central problem of a body that is not politically accountable “telling the people’s elected representatives that they cannot govern as they’d like.” On the other side, Hamilton’s Federalist No. 78 argued that independent judges are needed “to guard the Constitution and the rights of individuals from the effects of those ill humors”, and that the Constitution, as “the intention of the people”, should prevail over “the intention of their agents”. Bickel’s title repeats Hamilton’s phrase “least dangerous”.

Try it: hear each side’s argument on the balance. The balance is a metaphor, not a measurement.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Wikipedia: Alexander Bickel](https://en.wikipedia.org/wiki/Alexander_Bickel); [Cornell LII, Constitution Annotated: the counter-majoritarian difficulty](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-counter-majoritarian-difficulty); [Federalist No. 78 (Alexander Hamilton, 1788), text at the American Presidency Project](https://www.presidency.ucsb.edu/documents/federalist-no-78-the-judiciary-department); [US National Archives: The Constitution, what does it say?](https://www.archives.gov/founding-docs/constitution/what-does-it-say)

## Chapter VII · Courts today

### Courts today
*Chapter VII · Courts today*

A Thai court and a Polish dispute.

Thailand's Constitutional Court was created by the constitution of 1997. Under the current constitution, of 2017, it has nine judges: three from the Supreme Court, two from the Supreme Administrative Court, a law expert, a political science expert, and two senior public officials. A selection committee chaired by the President of the Supreme Court nominates the others, the Senate must approve every judge, and the King appoints them, for a seven-year term. Individuals could already petition the court under the 2007 constitution. The 2017 version widened that route to acts of state bodies, with the Ombudsman as the first stop.

![The Chao Phraya River at dusk. AI-generated image.](https://assets.planetpast.com/a/90/90e5ab741c4bc6af.jpg)

- Supreme Court: 3
- Supreme Administrative Court: 2
- law expert: 1
- political science expert: 1
- senior public officials: 2

- **7**: year term
- **45–68**: required age when chosen
- **75**: age at which a judge must leave office

- 1997: the court is created
- 2007: individuals may petition (Wikipedia)
- 2017: route widened, via the Ombudsman (section 213)

Chapter VII · Courts today

#### Thailand’s Constitutional Court

Wikipedia: the Constitutional Court of Thailand was established under the 1997 constitution; under the 2007 constitution, petitioners included any person whose constitutional rights were violated; its current authority comes from the 2017 constitution. Thai Legal Studies (Thammasat University) describes the court under the 2017 constitution: nine judges appointed by the King, three from the Supreme Court and two from the Supreme Administrative Court (elected by those courts’ plenary meetings), one law professor, one political science professor and two qualified senior government officials; a selection committee chaired by the President of the Supreme Court picks the others; the Senate must approve each appointment by at least half of its total membership; judges serve seven years, must be between 45 and 68 to qualify, and retire at 75. Under section 213, a person whose constitutional rights or liberties were violated by a state body, with direct damage, may petition the court after the Ombudsmen have decided. Its powers include reviewing bills, laws and emergency decrees, settling disputes between state bodies, ruling on the qualifications of office holders and hearing political party cases.

The film describes how the court is built, not its individual rulings.

Try it: move the clock on to see seven-year terms run out. Start years are made up.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Wikipedia: Constitutional Court of Thailand](https://en.wikipedia.org/wiki/Constitutional_Court_of_Thailand); [Thai Legal Studies (Thammasat University): the Constitutional Court of Thailand under the 2017 Constitution](https://so01.tci-thaijo.org/index.php/tls/article/download/264753/173306?inline=1)

### 

Back to Warsaw. Poland's tribunal has fifteen judges, each elected by the Sejm, the lower house, for a single nine-year term, and sworn in before the president. In 2015 the outgoing parliament elected five judges, two of them early, for seats that fell vacant only after its term. The tribunal later ruled that three of the five had a valid legal basis. The new Law and Justice majority then elected five judges of its own, including for those three seats, and the president at the time, Andrzej Duda, did not swear in the three.

- **15**: judges
- **9**: year single term, elected by the Sejm

- 3 seats ending 6 Nov 2015: validly filled by the old Sejm
- 2 seats ending 2 and 8 Dec 2015: chosen too early

- **2015**: Andrzej Duda, president then
- **2026**: Karol Nawrocki, president now

Chapter VII · Courts today

#### Poland, 2015

Wikipedia and the 1997 Act on the Constitutional Tribunal: 15 judges chosen by the Sejm for single nine-year terms. Constitutional Tribunal press release on case K 34/15 (3 December 2015): the previous Sejm validly elected the three judges whose predecessors’ terms ended on 6 November 2015, but the legal basis for electing the two whose seats became vacant on 2 and 8 December 2015 was unconstitutional, because the Sejm had chosen them early, in its previous term. Al Jazeera (31 October 2026): the incoming Law and Justice (PiS) majority elected replacements, including for the three lawfully filled seats, and then-President Andrzej Duda refused to swear in the three validly elected judges.

The film reports each side’s account and does not judge which is right. The five highlighted seats stand for the five judges elected in 2015; seat positions are schematic.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Wikipedia: Constitutional Tribunal (Poland)](https://en.wikipedia.org/wiki/Constitutional_Tribunal_(Poland)); [Act on the Constitutional Tribunal of Poland (1997), English translation at Refworld](https://www.refworld.org/legal/legislation/natlegbod/1997/en/94667); [Constitutional Tribunal of Poland: press release on case K 34/15 (3 December 2015)](https://trybunal.gov.pl/en/news/press-releases/after-the-hearing/art/8753-ustawa-o-trybunale-konstytucyjnym); [Al Jazeera (31 Oct 2026): Protests outside Poland’s Constitutional Court, what’s the crisis about?](https://www.aljazeera.com/news/2026/10/31/protests-outside-polands-constitutional-court-whats-the-crisis-about)

### 

In December 2025 the EU Court of Justice ruled that the tribunal, as composed, is not an independent court. A Law and Justice former prime minister called that ruling a usurpation. This year parliament elected eight judges. The president now, Karol Nawrocki, swore in three and refused five, who took the oath without him; the tribunal’s president did not let those five hear cases. The judge who announced the suspensions is one of those five. She claimed to run the court as its most senior judge, counting her years as a judge overall. Tusk's government says it is restoring the rule of law after years of political interference. The president, the opposition and the tribunal's leadership call its moves unlawful. Elections are due in 2027.

- Dec 2023: Tusk takes office; his government does not recognise the tribunal as constituted
- 18 Dec 2025: EU Court of Justice, case C-448/23
- Mar 2026: parliament begins filling vacancies
- 30 Oct 2026: suspensions announced; the president comes to the court

- **8**: elected by parliament
- **3**: sworn in by the president
- **5**: took the oath without him

- Her claim: acting head as the most senior judge, by total years as a judge (Al Jazeera)
- The president, heard in footage: “you are not Constitutional Tribunal judges” (Notes from Poland)

- Government: decisive action is needed to undo political interference with the courts
- President’s office: a breach of the constitutional order and a forcible takeover
- Tribunal leadership: challenges the legality of the moves (Euronews)

Chapter VII · Courts today

#### Poland, 2023–2026

Al Jazeera (31 October 2026): Donald Tusk took office in December 2023 promising to restore judicial independence; his government refuses to recognise the tribunal in its current form. This year parliament elected eight judges; President Karol Nawrocki administered the oath to three and withheld it from five, who took their oaths without him, and the tribunal’s president Bogdan Święczkowski refused to let them adjudicate. Korwin-Piotrowska’s claim to run the court rests on her length of judicial service overall, not on her time at the tribunal. Eucrim: on 18 December 2025, in case C-448/23 (Commission v Poland), the Grand Chamber of the EU Court of Justice held that appointments of tribunal judges in 2015 and 2016 were vitiated by infringements of fundamental rules and that the tribunal does not meet the requirements of an independent and impartial tribunal established by law. Notes from Poland (18 December 2025): Law and Justice’s former prime minister Beata Szydło called the ruling “usurpation and lawlessness by the CJEU”; Justice Minister Waldemar Żurek welcomed it. Euronews (31 October 2026): the president’s chief of staff called the events “a breach of the constitutional order”; the tribunal’s leadership challenged the legality of the moves. Parliamentary elections are due in 2027 (Al Jazeera).

The film reports each side’s account and does not judge which is right. The five highlighted seats stand for the five judges who took the oath without the president; seat positions are schematic.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Al Jazeera (31 Oct 2026): Protests outside Poland’s Constitutional Court, what’s the crisis about?](https://www.aljazeera.com/news/2026/10/31/protests-outside-polands-constitutional-court-whats-the-crisis-about); [Notes from Poland (31 Oct 2026): Polish president in physical confrontation with judges amid power struggle at Constitutional Court](https://notesfrompoland.com/2026/10/31/polish-president-in-physical-confrontation-with-judges-amid-power-struggle-at-constitutional-court/); [Euronews (31 Oct 2026): Poland political crisis, Constitutional Court in chaos as Nawrocki accuses government](https://www.euronews.com/2026/10/31/poland-political-crisis-constitutional-court-in-chaos-as-nawrocki-accuses-government-of-st); [Eucrim: ECJ reprimands Polish Constitutional Court and denies its independence (C-448/23, 18 Dec 2025)](https://eucrim.eu/news/ecj-reprimands-polish-constitutional-court-and-denies-its-independence/); [Notes from Poland (18 Dec 2025): Polish Constitutional Tribunal violated European law, rules EU court](https://notesfrompoland.com/2025/12/18/polish-constitutional-tribunal-violated-european-law-rules-eu-court/)

## Epilogue

### The last word
*Epilogue*

A written promise that binds even the majority.

A constitutional court rests on a wager: that a written text can bind even the majority that governs. Much of it is design: who can bring a case, who chooses the judges, how long they serve. But one question no design answers on its own: will the other branches accept the court's answer, and who decides who the court is? In Warsaw, that is now the fight.

- Who may bring a case: politicians, judges, citizens?
- Who appoints, and by what majority?
- How long a term, and can it be renewed?

![All stills and pictures in this film are AI-generated illustrations. AI-generated image.](https://assets.planetpast.com/a/87/8781a21e973b209f.jpg)

Epilogue

#### Sources and notes

This film draws on Al Jazeera, Notes from Poland, Euronews, Eucrim and the Polish Constitutional Tribunal for Poland; on the US National Archives, Federalist No. 78 and EBSCO for the American story; on the Library of Congress, the Czech government, the Constitutional Court of the Slovak Republic and Wikipedia for 1920; on the Georgetown Journal of International Affairs, the Deutschland Museum, the Italian Constitutional Court and International IDEA for the spread of constitutional courts and their design; on Wikipedia and Spain’s constitution for Germany and Spain; on Wikipedia and the Constitution Annotated (Cornell LII) for Bickel and the counter-majoritarian debate; on the Council of Europe for the Venice Commission; and on Wikipedia and Thai Legal Studies for Thailand. All stills and pictures are AI-generated illustrations; the 3D models are simplified teaching diagrams.

The 3D models are simplified teaching diagrams, not pictures of real courts or buildings.

Sources: [Al Jazeera (31 Oct 2026): Protests outside Poland’s Constitutional Court, what’s the crisis about?](https://www.aljazeera.com/news/2026/10/31/protests-outside-polands-constitutional-court-whats-the-crisis-about); [Notes from Poland (31 Oct 2026): Polish president in physical confrontation with judges amid power struggle at Constitutional Court](https://notesfrompoland.com/2026/10/31/polish-president-in-physical-confrontation-with-judges-amid-power-struggle-at-constitutional-court/); [Euronews (31 Oct 2026): Poland political crisis, Constitutional Court in chaos as Nawrocki accuses government](https://www.euronews.com/2026/10/31/poland-political-crisis-constitutional-court-in-chaos-as-nawrocki-accuses-government-of-st); [Eucrim: ECJ reprimands Polish Constitutional Court and denies its independence (C-448/23, 18 Dec 2025)](https://eucrim.eu/news/ecj-reprimands-polish-constitutional-court-and-denies-its-independence/); [Notes from Poland (18 Dec 2025): Polish Constitutional Tribunal violated European law, rules EU court](https://notesfrompoland.com/2025/12/18/polish-constitutional-tribunal-violated-european-law-rules-eu-court/); [Constitutional Tribunal of Poland: press release on case K 34/15 (3 December 2015)](https://trybunal.gov.pl/en/news/press-releases/after-the-hearing/art/8753-ustawa-o-trybunale-konstytucyjnym); [US National Archives: The Constitution, what does it say?](https://www.archives.gov/founding-docs/constitution/what-does-it-say); [LexPlug: Hans Kelsen and the Pure Theory of Law (hierarchy of norms)](https://www.lexplug.com/outlines/jurisprudence/hans-kelsen-the-pure-theory-of-law); [Federalist No. 78 (Alexander Hamilton, 1788), text at the American Presidency Project](https://www.presidency.ucsb.edu/documents/federalist-no-78-the-judiciary-department); [Teaching American History: Federalist No. 78](https://teachingamericanhistory.org/document/federalist-no-78/); [EBSCO Research Starters: Marbury v. Madison](https://www.ebsco.com/research-starters/law/marbury-v-madison/); [Wikipedia: Constitutional court](https://en.wikipedia.org/wiki/Constitutional_court); [Library of Congress, In Custodia Legis (2020): 100-year anniversary of the Austrian Constitution](https://blogs.loc.gov/law/2020/10/100-year-anniversary-of-the-austrian-constitution/); [Office of the Government of the Czech Republic: the 1920 Constitution](https://uv.gov.cz/en/media-centrum/aktualne/the-1920-constitution-68721/); [Constitutional Court of the Slovak Republic: brief history](https://ustavnysud.sk/en/home/constitutional-court/brief-history); [Castillo-Ortiz, Georgetown Journal of International Affairs (2020): Constitutional courts, democracy and judicial independence in Europe](https://gjia.georgetown.edu/2020/04/28/constitutional-courts-democracy-judicial-independence-in-europe/); [Deutschland Museum: opening of the Federal Constitutional Court, 28 September 1951](https://www.deutschlandmuseum.de/en/?p=22251); [Corte costituzionale: the Italian Constitutional Court](https://www.cortecostituzionale.it/jsp/consulta/istituzioni/la_corte_costituzionale_italiana_EN.do); [Wikipedia: Constitutional Tribunal (Poland)](https://en.wikipedia.org/wiki/Constitutional_Tribunal_(Poland)); [International IDEA (2017): The fundamentals of constitutional courts (Constitution-Building Primer)](https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitutional-courts.pdf); [Wikipedia: Federal Constitutional Court (Germany)](https://en.wikipedia.org/wiki/Federal_Constitutional_Court); [La Moncloa: Spanish Constitution, Part IX, The Constitutional Court](https://www.lamoncloa.gob.es/lang/en/espana/leyfundamental/paginas/titulo_noveno.aspx); [Wikipedia: Alexander Bickel](https://en.wikipedia.org/wiki/Alexander_Bickel); [Cornell LII, Constitution Annotated: the counter-majoritarian difficulty](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-counter-majoritarian-difficulty); [Council of Europe: About the Venice Commission](https://www.coe.int/en/web/venice-commission/about); [Wikipedia: Venice Commission](https://en.wikipedia.org/wiki/Venice_Commission); [Wikipedia: Constitutional Court of Thailand](https://en.wikipedia.org/wiki/Constitutional_Court_of_Thailand); [Thai Legal Studies (Thammasat University): the Constitutional Court of Thailand under the 2017 Constitution](https://so01.tci-thaijo.org/index.php/tls/article/download/264753/173306?inline=1); [Act on the Constitutional Tribunal of Poland (1997), English translation at Refworld](https://www.refworld.org/legal/legislation/natlegbod/1997/en/94667)