Dangerous or Endangered Constitutional Courts? A View from among and within the Branches of Power

Abstract Recalling Alexander Hamilton’s famous statement according to which the judiciary is the “least dangerous branch", the article examines both dangers to specialised constitutional courts and dangers stemming from them. Hamilton already perceived these contrasting dangers as either a “usurpation" of courts by the other branches or as an arbitrary interpretation of the constitution by the courts themselves. Both dangers can be mitigated by applying various organisational and functional designs, but they cannot be totally excluded. A constitutionally positive “dangerousness" of constitutional courts which serves the effective protection of the constitution results from the number and strength of their functions, but also from the relevance of the time factor for their decisions, as the corona crisis shows. Constitutional courts, however, do not just face the other branches, but – from the view of an internal separation of powers – also other courts. The relationship between constitutional courts and other courts or bodies belonging to the other branches is complex and must not be reduced to the notion of a separation of monolithic powers.