Ancillary Powers of Constitutional Courts

In their article, Professors Tom Ginsburg and Richard Elkins explore ancillary powers of constitutional courts—an important area of constitutional design that is often overlooked.  Most observers of the international spread of constitutional courts have focused instead on the more traditional power of judicial review.  Ancillary powers, in contrast, are those that fall outside of the conventional constitutional review of high courts.  As constitutional courts have become more prevalent, constitutional designers have turned to these relatively successful institutions to take on additional tasks through the addition of ancillary powers.  Professors Ginsburg and Elkins classify and describe the different types of ancillary powers found in the many international constitutional courts.

Notable ancillary powers include: proposing legislation, ruling on whether a political party is constitutional, certifying states of emergency, impeaching senior government officials, and adjudicating election violations.  They also speculate on the consequences of assigning such powers to constitutional courts, such as the danger that new courts will be drawn into zero-sum political confrontations that they are ill-equipped to handle.