Why Multi-Ethnic Belgium’s Constitutional Court Keeps Mum

The Constitutionalization of Ethnicity, Judicial Review, and “Passive Virtues”

  • Jan Erk Stellenbosch University


The recent decades have witnessed the constitutionalization of ethnicity in various multi-ethnic countries. From Spain to Ethiopia, this has mostly been along a federal path. This global trend has also coincided with what might be called the judicialization of politics and, in particular, the global spread of constitutional review. Multi-ethnic Belgium’s federalization process follows the first global trend but not the second. The constitutionalization of ethnicity has happened without the Belgian constitutional court’s involvement. This is thus the first international study of not when constitutional courts act but when they do not and why this matters. The article builds on the notion of “passive virtues” Alexander M. Bickel coined in 1961 to explain how the U.S. Supreme Court had found ways to avoid, decline, or delay judgment on controversial and essentially political matters upon which it was asked to rule. During Belgian federalization, politics led and the constitutional court followed.