From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities.
A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.
I do not forget the position, assumed by some, that Constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government.
Whenever they shall grow weary of the existing government, they can exercise their CONSTITUTIONAL right of amending it, or their REVOLUTIONARY right to dismember or overthrow it.
Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right?
They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned.
(25) Bogdan, DIMA, "Conflictele juridice de natura constitutionals dintre legislativ, executiv si puterea judecatoreasca" in Sfera politici, No.
Being the supreme guardian of the Constitution and at the same time, founding its activities and competencies on its provisions, the Constitutional Courts should also be analyzed from a dualistic perspective, as they are both political and judicial institutions.
Nonetheless, before proceeding to such an analysis of their role, it is well-worth noting that the newly-established Constitutional Courts are the result of a desperate attempt of the former communist countries to distance themselves from the previous regime.
An example in point is the case of the Russian Constitutional Court which was altogether suspended in 1993 by the President Boris Yeltsin after it had sided with the Parliament in a dispute between it and the President.
First of all, Hans Kelsen has envisaged the role of the Constitutional Courts to be that of a negative legislator (5), which would "limit itself only to sanctioning those pieces of legislation which are not in accordance with the Fundamental Law, as opposed to the Parliament, which stands as a positive legislator" (6), because it is entitled to enact laws.
Secondly, it is important to note that the Constitutional Courts are not a part of the branches of power in a state because they are not a part of the judicial branch.
Nevertheless, a political role has been assigned to Constitutional Courts, because they are that "public authority which is meant to ensure the well-functioning of the public powers in the framework of the constitutional relations of separation, balance, cooperation and mutual control" (8).
One of the main reasons for my argument is that the possibility of appealing to an independent institution in order to solve conflicts of a political nature which are quite frequent in any democratic state is likely to "turn the Constitutional Courts into mere watchdogs and divert them from their original purpose--that of ensuring the judicial review" (10).
One of the reasons for which Constitutional Courts are established is to solve the potential conflicts between the federal and the federate authorities, as would be the case in Germany and in Austria.