Constitutionality

Constitutionality is the condition of acting in accordance with an applicable constitution;[1] the status of a law, a procedure, or an act's accordance with the laws or guidelines set forth in the applicable constitution. When one of these (laws, procedures, or acts) directly violates the constitution, it is unconstitutional. All the rest are considered constitutional until challenged and declared otherwise, typically by courts through judicial review.

Applicability

An act (or statute) enacted as law either by a national legislature or by the legislature of a subordinate level of government (such as a state or province) may be declared unconstitutional.

However, governments do not just create laws. Governments also enforce the laws set forth in the document defining the government—in the Constitution. In the United States, the failure to seat duly elected representatives of the people following a proper election, or the failure to provide for such elections would be unconstitutional even in the absence of any legislated laws whatsoever.

When the proper court determines that a legislative act (a law) conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is called judicial review. The portion of the law declared void is considered struck down, or the entire statute is considered struck from the statute books.

Depending on the type of legal system, a statute may be declared unconstitutional by any court, or only by special Constitutional courts with authority to rule on the validity of a statute. In some countries, the legislature may create any law for any purpose, and there is no provision for courts to declare a law unconstitutional. This can occur either because the country has no codified constitution that laws must conform to (e.g., the United Kingdom and New Zealand) or because the constitution is codified but no court has the authority to strike down laws on the basis of it (e.g., the Netherlands and Switzerland).

In many jurisdictions the supreme court or constitutional court is the final legal arbiter that renders an opinion on whether a law or an action of a government official is constitutional. Most constitutions define the powers of government. Thus, national constitutions typically apply only to government actions. This means that only governments can violate the nation's constitution, but there are exceptions.

A constitutional violation is thus somewhat different from the breaking of a normal law, both in terms of seriousness and punishment. Declaring a law unconstitutional does not result in the punishment of those who passed it down.

The legal encyclopedia American Jurisprudence says the following in regard to constitutionality:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)

A law in violation of an existing statute can be described as unstatutable.[2]

Examples of unconstitutional actions

An action that breaks any part of the constitution could range from minor to major. In the United Kingdom, this is more ambiguous because such breach covers those that violate principles, procedures or rights, making it difficult to establish what is unconstitutional from the constitutional. It is clearer in the case of the United States, which considers an act an infringement if it violates the spirit or the letter of the written constitution.[3]

Some examples of unconstitutional actions can be:

  • Actions by politician outside the powers of his constitutionally-established office;
  • Actions on behalf of the government that prevent an individual from exercising constitutionally protected individual rights (such as the right to vote or to practice religion). See McDonald v. City of Chicago
  • The suspension of habeas corpus, except in a state of emergency[4]

Unconstitutional laws in the United States

Much debate often surrounds controversial laws enacted by state legislatures and the United States Congress regarding the laws' constitutionality. Some of the controversialists against particular acts in the 19th century proposed protecting the people by applying the Principles of '98. Judicial review in the United States, however, became the usual way to resolve such controversies. Few people in the U.S. question the validity of this power and as a leading legal expert stated, "it is as clear as such matters can be that the Framers of the Constitution specifically, if tacitly, expected that the federal courts would assume a power... to pass on the constitutionality of actions of the Congress and the President."[5] Judicial review also covers the evaluation of the constitutionality of the states' actions. It is even recognized that federal judges in the U.S. are elected for life to ensure their ability to engage in judicial review.[6]

Examples of laws that were declared unconstitutional in the United States include Roe vs. Wade (1973), which declared the abortion laws in fifty U.S. states unconstitutional and the Brown v. Board of Education (1954), which nullified racial segregation in public schools.[7]

There are different forms of constitutions. The United States Constitution is a "Rigid Constitution". Rigid constitutions cannot be modified in their express terms, except through such processes the constitution itself ordains.

See also

References

  1. ^ "Archived copy". Archived from the original on April 25, 2009. Retrieved May 11, 2009.CS1 maint: Archived copy as title (link) "Webster On Line"
  2. ^ "Unstatutable | Definition, meaning & more | Collins Dictionary". CollinsDictionary.com. Archived from the original on September 21, 2016. Retrieved August 23, 2016.
  3. ^ Wilson, Christopher (2003). Understanding A/S Level Government Politics. Manchester: Manchester University Press. p. 177. ISBN 0719060818.
  4. ^ Wilson, p. 177.
  5. ^ May, Christopher; Ides, Allan; Grossi, Simona (2007). Constitutional Law National Power and Federalism: Examples and Explanations. Austin: Wolters Kluwer. p. 18. ISBN 0735562113.
  6. ^ May, Ides & Grossi, p. 18.
  7. ^ Miller, Mark (2015). Judicial Politics in the United States. Philadelphia: Westview Press. ISBN 9780813346809.
2010 Wyoming gubernatorial election

The 2010 Wyoming gubernatorial election was held on Tuesday, November 2, 2010 to elect the Governor of Wyoming, who will serve a four-year term to begin in January 2011. Party primaries were held on August 17.

While it was initially thought that term limits would prevent incumbent Democratic Governor Dave Freudenthal from running for re-election, the constitutionality of the term limit law has been questioned, leaving the possibility that if Freudenthal had successfully challenged the law, he might have been able to run for a third term. On March 4, 2010, Freudenthal announced he would not run for a third term.Republican candidate Matt Mead defeated Democratic candidate Leslie Petersen in the general election.

Freudenthal won all counties in 2006, this was reversed in this election when Mead won all counties.

Basic structure doctrine

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these "basic features", as expounded by its most prominent proponent Justice Hans Raj Khanna, are the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a power of the Supreme Court to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution.The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. Thus it gives extra power to court to review and strike down any constitutinal amendmentts and act enacted by the Parliament.

The Supreme Court's initial position on constitutional amendments was that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. The "basic features" principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote, It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the preview of Article 368?

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna's judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures, proved that in fact such apprehension was well-grounded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy.The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".

Constitutional Court of Colombia

The Constitutional Court of Colombia (Spanish: Corte Constitucional de Colombia) is the supreme constitutional court of Colombia. Part of the Judiciary, it is the final appellate court for matters involving interpretation of the Constitution with the power to determine the constitutionality of laws, acts, and statutes.

The court was first established by the Constitution of 1991, and its first session began in March 1992. The court is housed within the shared judicial complex of the Palace of Justice located on the north side of Bolívar Square in the La Candelaria neighbourhood of Bogotá.

The Constitutional Court consists of nine magistrates who are elected by the Senate of Colombia from ternary lists drawn up by the President, the Supreme Court of Justice, and the Council of State. The magistrates serve for a term of eight years. The court is headed by a President and Vice President.

Constitutional Court of Korea

The Constitutional Court of Korea (Hangul: 헌법재판소; Hanja: 憲法裁判所; RR: Heonbeop Jaepanso) is an independent and specialised court in South Korea, whose primary role is the reviewing of constitutionality under the Constitution of the Republic of Korea. It also has administrative law functions such as ruling on competence disputes between governmental entities, giving final decisions on impeachments, and making judgments on the dissolution of political parties.

Intelligence Bureau (India)

The Intelligence Bureau (IB) is India's internal intelligence agency. It was recast as the Central Intelligence Bureau in 1947 under the Ministry of Home Affairs. The reason for the perception may be because, in 1885, Major General Charles MacGregor was appointed Quartermaster General and head of the Intelligence Department for the British Indian Army at Simla. The objective then was to monitor Russian troop deployments in Afghanistan, fearing a Russian invasion of British India through the North-West during the late 19th century.

In 1909, the Indian Political Intelligence Office was established in England in response to the development of Indian revolutionary activities, which came to be called the Indian Political Intelligence (IPI) from 1921. This was a state-run surveillance and monitoring agency. The IPI was run jointly by the India Office and the Government of India and reported jointly to the Secretary of the Public and Judicial Department of the India Office, and the Director of Intelligence Bureau (DIB) in India, and maintained close contact with Scotland Yard and MI5.

Rajiv Jain is the current director of IB, holding the position since January 1, 2017. Rajiv Jain is a 1980 batch Police officer from the Jharkhand cadre who took over from Dineshwar Sharma on January 1.

Judicial review

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Judicial review in the United States

In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States: In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax". The Court engaged in the process of judicial review by examining the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.

As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.

Kirkbi AG v Ritvik Holdings Inc

Kirkbi AG v. Ritvik Holdings Inc., popularly known as the Lego Case, is a decision of the Supreme Court of Canada. The Court upheld the constitutionality of section 7(b) of the Trade-marks Act which prohibits the use of confusing marks, as well, on a second issue it was held that the doctrine of functionality applied to unregistered trade-marks.

List of United States Supreme Court cases by the Taft Court

This is a partial chronological list of cases decided by the United States Supreme Court during the Taft Court, the tenure of Chief Justice William Howard Taft from July 11, 1921 through February 3, 1930.

Owen Roberts

Owen Josephus Roberts (May 2, 1875 – May 17, 1955) was an Associate Justice of the United States Supreme Court from 1930 to 1945. He also led two Roberts Commissions, the first of which investigated the attack on Pearl Harbor, and the second of which focused on works of cultural value during World War II.

Born in Philadelphia, Roberts graduated from the University of Pennsylvania Law School and pursued a legal career. After working as a district attorney in Philadelphia, he was appointed by President Calvin Coolidge to investigate the Teapot Dome scandal. After the death of Associate Justice Edward Terry Sanford in March 1930, President Hoover nominated John J. Parker to fill the vacancy on the court. The Senate rejected Parker and Hoover quickly nominated Roberts as his second choice for the vacancy. Roberts was easily confirmed and took his position on the court in May 1930.

On the Hughes Court, Roberts was a swing vote positioned between the conservative Four Horsemen and the liberal Three Musketeers. Along with Chief Justice Charles Evans Hughes, Roberts's vote often decided whether President Franklin D. Roosevelt's New Deal legislation would be upheld. His decision to uphold the constitutionality of a state minimum wage law in West Coast Hotel Co. v. Parrish has been called "the switch in time that saved nine." That term references the decision's possible role in the defeat of the Judicial Procedures Reform Bill of 1937, which would have expanded the Supreme Court and thus allowed Roosevelt to appoint Justices more sympathetic to his policies. Roberts's motivation for upholding the constitutionality of the New Deal and his role in the defeat of the bill remains a matter of debate.

Though the bill was defeated, Roosevelt's long presidency allowed him to appoint most of the court. By the end of Roberts's tenure, he was the lone Supreme Court Justice who was not appointed by Roosevelt. He was one of three Justices to vote against Roosevelt's orders for Japanese American internment camps in Korematsu v. United States as well as the lone judge to dissent in the case of Smith v. Allwright, which ruled white primaries unconstitutional. His relations with his colleagues on the Stone Court became strained and he retired in 1945. Roberts served as the Dean of the University of Pennsylvania Law School from 1948 to 1951. He died in Chester County, Pennsylvania in 1955.

Politics of San Marino

Politics of San Marino takes place in a framework of a parliamentary representative democratic republic, whereby the Captains Regent are the heads of state and heads of government, and of a multi-party system. Executive power is exercised by the government. Legislative power is vested in both the government and the Grand and General Council. The judiciary is independent of the executive and the legislature.

San Marino was originally led by the Arengo, initially formed with the heads of each family. In the 13th century, power was given to the Great and General Council. In 1243, the first two Captains Regent were nominated by the Council and is still in use today.

Quasi-constitutionality

In Canada, the term quasi-constitutional is used for laws which remain paramount even when subsequent statutes, which contradict them, are enacted by the same legislature. This is the reverse of the normal practice, under which newer laws trump any contradictory provisions in any older statute.

Senate (Egypt)

The Shura Council (Arabic: مجلس الشورى‎, pronounced [ˈmæɡles eʃˈʃuːɾˤɑ], "consultative council") was the upper house of the formerly bicameral Parliament of Egypt. Its name roughly translated into English as "the Consultative Council". The lower house of parliament is the House of Representatives. The council was abolished by the 2014 constitution.The Shura Council was created in 1980 through a Constitutional Amendment. The Council was composed of 264 members of which 176 members were directly elected and 88 were appointed by the President of the Republic for six-year terms. Membership was rotating, with one half of the Council renewed every three years.

A legal challenge concerning the constitutionality of the Shura Council was to have been considered on 2 December 2012 by the High Constitutional Court, but the court postponed the verdict in response to protests. Mohamed Morsi's constitutional declaration issued in November 2012 bars the Shura Council from being dissolved by the judiciary. The constitutional declaration issued by Morsi in December 2012 allowed the Shura Council to be dissolved by the judiciary. The High Constitutional Court referred the lawsuit to the State Commissioners' Board, which is the advisory board of the High Constitutional Court, on 15 January 2013. The board of commissioners will review the lawsuit on 10 February 2013; after lawyers give the required documents, the board will create a report on the constitutionality of the election law. The report was received 22 April 2013. The formation of the Shura Council was ruled unconstitutional on 2 June 2013. As of early July 2013, 30 members of the Shura Council have resigned. The Shura Council was dissolved on 5 July 2013.After the approval of the 2019 Egyptian constitutional referendum, an upper house will be restored and called the senate.

Standard of review

In law, the standard of review is the amount of deference given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute or precedent (stare decisis). In the United States, "standard of review" also has a separate meaning concerning the level of deference the judiciary gives to Congress when ruling on the constitutionality of legislation.

Supreme Constitutional Court (Egypt)

The Supreme Constitutional Court (Egyptian Arabic: المحكمة الدستورية العليا‎, El Mahkama El Dustūrīya El ‘Ulyā) is an independent judicial body in Egypt, located in the Cairo suburb of Maadi.

The Supreme Constitutional Court is the highest judicial power. It alone undertakes the judicial control in respect of the constitutionality of the laws and regulations and shall undertake the interpretation of the legislative texts in the manner prescribed by law. In addition, the court is empowered to settle competence disputes between the judicial and the administrative courts.

Supreme Constitutional Court of Syria

The Supreme Constitutional Court (Arabic: المحكمة الدستورية العليا‎, Al-Mahkamah al-Dustūrīyah al-‘Ulyā) is the highest jurisdictional authority in the Syrian Arab Republic. The Supreme Court was established under the 1971 Constitution to adjudicate electoral disputes, rule on the constitutionality of a law or decree challenged by the prime minister or People's Council, and to render opinions on the constitutionality of bills, decrees, and regulations when requested to do so by the prime minister. The High Constitutional Court is forbidden, however, to question the validity of the popularly approved "laws submitted by the President of the Republic to popular referendums." The court consists of the president and four judges he appoints to serve a renewable term of four years.

Supreme Court of Ireland

The Supreme Court of Ireland (Irish: Cúirt Uachtarach na hÉireann) is the highest judicial authority in Ireland. It is a court of final appeal and exercises, in conjunction with the Court of Appeal and the High Court, judicial review over Acts of the Oireachtas (Irish parliament). The Supreme Court also has jurisdiction to ensure compliance with the Constitution of Ireland by governmental bodies and private citizens. It sits in the Four Courts in Dublin.

Supreme Court of Japan

The Supreme Court of Japan (最高裁判所, Saikō-Saibansho, called 最高裁 Saikō-Sai for short), located in Hayabusachō, Chiyoda, Tokyo, is the highest court in Japan. It has ultimate judicial authority to interpret the Japanese constitution and decide questions of national law (including local bylaws). It has the power of judicial review; that is, it can declare Acts of the National Diet, local assemblies, and administrative actions, to be unconstitutional.

Supreme Federal Court

The Supreme Federal Court (Portuguese: Supremo Tribunal Federal, [suˈpɾẽmu tɾibuˈnaw fedeˈɾaw], abbreviated STF) is the supreme court (court of last resort) of Brazil, serving primarily as the Constitutional Court of the country. It is the highest court of law in Brazil for constitutional issues and its rulings cannot be appealed. On questions involving exclusively non-constitutional issues, regarding federal laws, the highest court is, by rule, the Superior Court of Justice.

Alongside its appeal competence, mostly by the Extraordinary Appeal (Recurso Extraordinário), the Court has a small range of cases of original jurisdiction, including the power of judicial review, judging the constitutionality of laws passed by the National Congress, through a Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade, or ADI). There are also other mechanisms for reaching the Court directly, such as the Declaratory Action of Constitutionality (Ação Declaratória de Constitucionalidade, or ADC) and the Direct Action of Unconstitutionality by Omission (Ação Direta de Inconstitucionalidade por Omissão or ADO).

The eleven judges of the court are called Ministers (Ministro), although having no similarity with the government body of ministers. They are appointed by the President and approved by the Senate. There is no term length but a mandatory retirement age of 75.

All judicial and administrative meetings of the Supreme Court have been broadcast live on television since 2002. The Court is open for the public to watch the meetings.

In May 2009 The Economist called the Supreme Federal Court "the most overburdened court in the world, thanks to a plethora of rights and privileges entrenched in the country's 1988 constitution (...) till recently the tribunal's decisions did not bind lower courts. The result was a court that is overstretched to the point of mutiny. The Supreme Court received 100,781 cases last year."

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