Part III
Elena Simina TĂNĂSESCU, Ph.D. in Law, Professor, Who Is Defending the Romanian Constitution? Between Presidential Obligation and Constitutional Adjudication
The question regarding the guardian of the Constitution is not new, nor is the debate between Hans Kelsen and Carl Schmitt unknown. Defending the Constitution and guaranteeing its supremacy have become increasingly normal in modern states governed by the rule of law under the strong influence of constitutionalism. The Constitution provides the legal framework for the political game, while constitutional judges interpret those legal boundaries to politics and politicians, despite possible interferences in this process coming from other actors. Whenever judges review a normative decision, that is a decision taken by another public authority, they risk putting in danger their own legitimacy simply by making possible the interpretation that they are replacing the appropriate decision-maker. Courts seem to have developed at least two basic techniques in order to deal with such sensitive issues, namely non-justiciability and self restraint. This paper will try to find out the peculiarities of the Romanian pattern in this respect.
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