The Constitutional Court’s Impact on Federalism in Belgium: a Weakening of the Centralization Theory

Abstract

In a blog post for the Flemish television broadcast website, the political scientist Bart Maddens expressed his dissatisfaction with the course taken by the Belgian Constitutional Court in federalism disputes.1 According to the author, the competence, obtained after the Sixth State Reform of 2012–2013, to review Parliamentary Acts against the federal loyalty principle was likely to trigger a ‘tsunami’ of federalism disputes, enabling the Court to implement a hidden unitary agenda. He feared that the politicized appointment of the judges and obscure judicial decision-making would prompt the Court to resolve these disputes on the basis of politics rather than law, and that it would turn into a neo-unitary counterweight to Belgian decentralizing dynamics. At the same time the author gave a sneer to the newly appointed judge, nominated by the Flemish-nationalist party N-VA: to him, her legal expertise did not outweigh the fact that, to his knowledge, she never expressed any opinion defending the Flemish case. The latter remark gave away that the author acted as a Flemish-nationalist opinion maker rather than a political scientist. It gave the impression that the Court’s assumed political activism was only a problem when it served the Belgian instead of the Flemish case. Nevertheless, his assumptions were not without scientific basis. It is widely claimed that courts in federal systems have a centralizing effect, shifting powers to the central level. They can do so because judicial interpretation allows the court to continuously define and redefine vertical power relations.2 Some scholars regard this as an empirical truism,3 others uplift it to a normative device.4 In addition, there is abundant evidence that judges’ ideological preferences impact on their decisions.5 While this research is usually focused on the US Supreme Court, recent studies show that ideology also plays a role