Anaya Nolan
The constitutionality of a law is affirmed through a country's legal system, which varies across nations. In some countries, any court can declare a statute unconstitutional, while in others, only special constitutional courts are authorised to rule on a statute's validity. The power to conduct judicial reviews, or determine if a law contradicts or violates existing laws or the constitution, may be held by federal courts or exclusively by state courts. Constitutional law defines the roles, powers, and structures of different entities within a state, such as the executive, legislature, and judiciary, as well as the basic rights of citizens and their relationship with the government. It serves as a second-order rule-making framework to govern the relationships between these entities and indicate hierarchies of power.
| Characteristics | Values |
|---|---|
| Definition | Constitutionality is the fact that something is acceptable according to an applicable constitution with regards to the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. |
| Basis | In most nations, constitutional law is based on the text of a document ratified at the time the nation came into being. |
| Exceptions | Some countries, like the United Kingdom, have no entrenched document setting out fundamental rights. In such cases, the constitution is composed of statute, case law, and convention. |
| Powers | Constitutional law defines the role, powers, and structure of different entities within a state, namely the executive, the parliament or legislature, and the judiciary. |
| Rights | It also defines the basic rights of citizens and their relationship with their governments. |
| Federal Countries | In federal countries such as the United States and Canada, constitutional law also defines the relationship between the central government and state, provincial, or territorial governments. |
| Hierarchy | One of the key tasks of constitutions is to indicate hierarchies and relationships of power. |
| Amendments | In some cases, constitutional amendments are required to change certain principles. For example, in the U.S., the Bill of Rights was passed to protect freedom of religion, speech, equal treatment, and due process of law. |
| Judicial Review | Judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the U.S. Constitution. |
| Interpretation | Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress. |
| Supremacy | The U.S. Constitution states that if any law passed by Congress conflicts with the Constitution, the Constitution ought to be preferred. |
| Ratification | The U.S. Constitution requires federal and state officeholders to be bound "by Oath or Affirmation, to support this Constitution." |
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What You'll Learn
Judicial review
In the United States, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution, even though it is not explicitly defined in the document. Two landmark decisions by the U.S. Supreme Court confirmed the inferred constitutional authority for judicial review. The first case, in 1796, was Hylton v. United States, which involved a direct challenge to the constitutionality of the Carriage Act of 1794. The second case, in 1803, was Marbury v. Madison, where the Supreme Court asserted its authority to strike down a law as unconstitutional. Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six.
While the federal courts have exclusive authority over judicial review in the United States, some have argued that this is unconstitutional. The first argument against it is that the power of judicial review is not explicitly delegated to the federal courts in the Constitution, and the Tenth Amendment reserves such powers for the states or the people. The second argument is that each state has its own understanding of the language of the amendment, making it necessary for the states to play a role in interpreting its meaning.
The first American decision to recognize the principle of judicial review was made by the Supreme Court of North Carolina's predecessor in 1787, in Bayard v. Singleton. The North Carolina court and other state courts treated state constitutions as statements of governing law to be interpreted and applied by judges.
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Federal and state constitutions
The constitutionality of a law in the United States is affirmed by the Supremacy Clause, which establishes the supremacy of federal law and the Constitution over state law. This clause, introduced as part of the New Jersey Plan during the Constitutional Convention of 1787, explicitly references the concept of judicial review, emphasising that duly enacted statutes do not override the Constitution. In other words, federal statutes and treaties must adhere to the Constitution and cannot violate constitutional limits on federal power, such as the Bill of Rights.
The Supremacy Clause also addresses the legal status of treaties, stating that they are to be regarded as the "supreme Law of the Land", on par with federal statutes. This was articulated in Foster v. Nielson (1829) by Chief Justice John Marshall, who distinguished between self-executing and non-self-executing agreements. Treaties are considered equivalent to acts of the legislature and are directly applicable in courts of justice when they operate independently without the need for additional legislative provisions.
The Supremacy Clause was a response to the shortcomings of the Articles of Confederation, which lacked a provision declaring federal law as superior to state law. The clause ensures that federal laws and treaties take precedence over any conflicting state laws or constitutions. This principle, known as conflict preemption, was applied by the Supreme Court throughout the nineteenth century, reinforcing the robust role of the federal government in managing the nation's affairs.
The federal courts, as explained by Alexander Hamilton in The Federalist #78, serve as an "intermediate body" between the people and their legislature, ensuring that representatives act within the authority granted by the Constitution. The courts are responsible for interpreting the Constitution and the laws passed by Congress, giving priority to the Constitution when conflicts arise. This interpretation and enforcement of the Constitution's meaning are crucial in affirming the constitutionality of laws in both federal and state contexts.
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The role, powers and structure of government entities
The US Constitution is the nation's fundamental law, dividing the federal government into three branches: legislative, executive, and judicial. This separation of powers ensures that no individual or group has too much authority.
The legislative branch, comprising the House and Senate (collectively known as Congress), is responsible for making laws, declaring war, regulating interstate and foreign commerce, and controlling taxing and spending policies. Congress also includes special agencies and offices that provide support services.
The executive branch, led by the President, enforces the laws of the land. The President is the commander-in-chief of the armed forces, conducts foreign relations, and has the power to negotiate and sign treaties (ratification requires two-thirds of the Senate's consent). The President also has agenda-setting powers and a significant role in policymaking and as the leader of their political party. The executive branch also includes the Vice President, who supports the President and assumes their role if they are unable to serve. The President's Cabinet serves as advisors, carrying out federal government programs and laws.
The judicial branch, including federal courts and the Supreme Court, interprets the Constitution and the laws passed by Congress. The Supreme Court can perform judicial review, determining if a statute, treaty, or administrative regulation contradicts the provisions of existing law, a state constitution, or the US Constitution. The Justices of the Supreme Court are nominated by the President and confirmed by the Senate.
At the state level, the specific powers of government entities, such as counties and municipalities, vary widely between states. For example, some counties have the power to collect taxes and maintain law enforcement agencies, while others have little to no power.
The US Constitution also recognises Indigenous tribes as sovereign powers, although they remain subject to federal jurisdiction.
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Basic rights of citizens
The US Constitution is the nation's fundamental law, codifying the core values of the people. It outlines the basic rights of citizens, which are further detailed in the Bill of Rights. These rights are so important that they cannot be infringed upon by the majority, barring a Constitutional Amendment. The courts play a crucial role in upholding these rights and interpreting the Constitution.
The first ten amendments to the Constitution, known as the Bill of Rights, were added in 1791 to guarantee specific freedoms and rights. Here are some of the key basic rights outlined in the Bill of Rights:
- Freedom of religion, speech, press, and assembly (First Amendment)
- The right to keep and bear arms (Second Amendment)
- Freedom from housing soldiers in private homes (Third Amendment)
- Protection against unreasonable search and seizure (Fourth Amendment)
- Protection against self-incrimination, double jeopardy, and seizure of property (Fifth Amendment)
- Right to a speedy and public trial, trial by an impartial jury, and to be informed of criminal charges (Sixth Amendment)
Additionally, the Ninth Amendment states that the listing of rights in the Bill of Rights does not exclude other rights from being in effect. The Tenth Amendment reserves powers not granted to the federal government for states or individual people.
The constitutionality of a law can be affirmed through judicial review, where courts determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the US Constitution. This power of judicial review has been inferred from the structure, provisions, and history of the Constitution. Landmark cases such as Marbury v. Madison in 1803 established the Supreme Court's authority to strike down laws as unconstitutional.
Beyond the Bill of Rights, citizens also have civil rights guaranteed under the Constitution. These include the right to share truthful information about law enforcement and inform others of their legal rights. Other civil rights include protection against discrimination based on race, ethnicity, national origin, and disability, as well as voting rights and protections for members of the LGBTQ+ community.
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The relationship between central government and state
The constitutionality of a law is affirmed through a judicial review, which is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the country's constitution. In the United States, for example, the Supreme Court has the authority to strike down a law as unconstitutional.
Now, when it comes to the relationship between central government and state, there are some key distinctions to be made. Firstly, a central government is the controlling power over a unitary state, whereas a federal government has distinct powers at various levels, authorized or delegated by the federation and agreed upon by the federated states. A federal government is formed by an agreement between formally independent states, and thus, its ability to affect the balance of powers is limited. An example of this is the United States, which is considered the first modern federation. After declaring independence from Britain, the US adopted the Articles of Confederation in 1781, its first constitution, and a step towards federalism.
The central government has the power to make laws for the whole country, while local governments have more limited powers. However, many countries have created autonomous regions by delegating powers from the central government to sub-national levels, such as regional or state governments. These governments have overlapping or shared powers as prescribed by a constitution or other laws.
In India, for instance, the division of powers between the state and central governments is outlined in the Indian Constitution. The central government exercises its powers at the national level, making laws on matters of national security, foreign affairs, banking, defence, and more. The state governments, on the other hand, administer specific states or regions and can pass statutes on issues like police, public health, and agriculture. They have the autonomy to respond to local needs within the framework of national laws.
In summary, the relationship between central government and state involves a division of powers, with the central government holding broader authority at the national level, and state governments having more localized powers and autonomy within their respective regions.
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Frequently asked questions
Constitutionality is the fact that something is acceptable according to an applicable constitution with regards to the status of a law, a procedure, or an act's accordance with the laws set forth in the applicable constitution.
The constitutionality of a law is affirmed by judicial review, which is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the United States Constitution.
The Supreme Court has the authority to strike down a law as unconstitutional. As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.
