Constitutional supremacy

What Is Constitutional Supremacy?

Constitutional supremacy is a foundational principle within constitutional law that establishes the constitution as the highest law of the land. In systems adhering to constitutional supremacy, all other laws, government actions, and judicial decisions must conform to the provisions of the constitution. This principle ensures that no single branch of government, nor any specific piece of legislation, can override the fundamental framework and principles set forth in the supreme document. It serves as a cornerstone of modern legal frameworks, providing stability and predictability by acting as the ultimate authority for governance and the protection of individual human rights.

History and Origin

The concept of constitutional supremacy has evolved over centuries, with roots in ancient legal traditions emphasizing the rule of law over arbitrary power. Early forms of constitutionalism, such as the Greek concept of nomos and the Roman Twelve Tables, laid groundwork by asserting that governance should be based on established legal frameworks¹⁶. A significant moment in its development was the signing of the Magna Carta in 1215, which began to establish the principle that even the monarch was subject to law¹⁵.

However, the modern articulation of constitutional supremacy, particularly with an independent judiciary capable of enforcing it, largely emerged with the advent of written constitutions. The United States Constitution, ratified in 1788, is a pivotal example, establishing a system where the Constitution itself is the "supreme Law of the Land." A landmark event in cementing this principle was the U.S. Supreme Court case Marbury v. Madison in 1803. In this case, Chief Justice John Marshall asserted the Court's power of judicial review, declaring that the judiciary could strike down legislative or executive actions that violated the Constitution¹³, ¹⁴. This decision underscored that the Constitution was not merely a political document but enforceable law, effectively establishing constitutional supremacy through judicial oversight¹¹, ¹².

Other nations have adopted and adapted the principle. For instance, South Africa's post-apartheid Constitution of 1996 explicitly states its supremacy, proclaiming that "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled"⁹, ¹⁰.

Key Takeaways

• Constitutional supremacy mandates that a nation's constitution is the highest law, to which all other laws and governmental actions must conform.
• It empowers an independent judiciary to review laws and actions for their constitutionality.
• The principle is crucial for upholding the rule of law and protecting fundamental rights against arbitrary government power.
• It forms the bedrock of systems that feature a separation of powers and effective checks and balances.
• The application and enforcement of constitutional supremacy can vary across different legal traditions and jurisdictions.

Interpreting Constitutional Supremacy

Interpreting constitutional supremacy involves understanding that the constitution serves as the ultimate yardstick against which all other laws and government actions are measured. In practice, this means that legislative bodies cannot pass statutory law that contradicts constitutional provisions, and the executive power must operate within its constitutional bounds.

The judiciary plays a critical role in this interpretation, particularly through the exercise of judicial review. When a court determines that a law or governmental action is inconsistent with the constitution, it can declare that law or action unconstitutional, rendering it invalid⁷, ⁸. This ensures the constitution’s fundamental principles, such as due process or specific property rights, are upheld even against the will of a legislative majority.

Hypothetical Example

Consider a hypothetical nation, the Republic of Veridia, which operates under constitutional supremacy. Its constitution guarantees freedom of speech as a fundamental right. The Veridian Parliament, in response to growing public concern over misinformation, passes a new "Public Information Control Act" that grants the government broad powers to censor news articles it deems misleading.

A local newspaper, "The Daily Voice," publishes an article critical of a government policy, which is subsequently ordered to be removed by a newly formed government agency under the authority of the new Act. The newspaper challenges this order in court, arguing that the Public Information Control Act violates the constitutional guarantee of freedom of speech.

In this scenario, because Veridia operates under constitutional supremacy, the courts would review the Public Information Control Act against the nation's constitution. If the court finds that the Act's provisions indeed infringe upon the constitutional right to freedom of speech, it would declare the relevant parts of the Act unconstitutional and therefore invalid. This ensures that the legislative power, even when acting with good intentions, cannot undermine the supreme law of the land.

Practical Applications

Constitutional supremacy has profound practical applications across various domains, from shaping public policy to influencing financial regulation. In governance, it dictates the legitimate scope of authority for all government branches, from the executive power to the legislative power, ensuring they operate within defined constitutional limits. This is particularly vital in federal systems where it clarifies the division of powers between central and regional governments, a concept known as federalism.

In the realm of financial regulation, constitutional supremacy often underpins the authority of federal agencies to regulate banking, commerce, and markets. For instance, in the United States, the Supreme Court's decision in McCulloch v. Maryland (1819) established the principle that federal law is supreme when exercised within constitutional limits, particularly regarding the creation and regulation of a national bank. ⁵, ⁶This ruling affirmed the implied powers of the federal government and its supremacy over state laws in specific financial matters, greatly influencing the structure of financial governance. Similarly, constitutional challenges to subsequent financial legislation, such as the Dodd-Frank Act, often revolve around the constitutional authority of Congress to enact such broad regulatory frameworks.
³, ⁴

Limitations and Criticisms

While constitutional supremacy is widely lauded for its role in upholding the rule of law and protecting rights, it is not without limitations or criticisms. One common critique revolves around the power of judicial review. Critics argue that vesting ultimate interpretive authority in the judiciary can lead to "judicial activism," where unelected judges potentially impose their own policy preferences under the guise of constitutional interpretation, rather than strictly applying the text. ²This can sometimes be seen as undermining the democratic will expressed through elected legislative power.

Another limitation lies in the amendment process of constitutions. Constitutions are often difficult to amend, meaning that adapting to evolving societal needs or rectifying perceived errors can be a slow and arduous process. This rigidity, while providing stability, can sometimes hinder necessary reforms or make a constitution seem out of step with contemporary values. Furthermore, the practical enforcement of constitutional supremacy can be challenged in situations where there is a lack of political will or institutional capacity to adhere to constitutional mandates, particularly in nascent democracies or during periods of political instability. Even in established systems, debates continue about the appropriate balance between constitutional rigidity and the need for governmental flexibility in policymaking.

Constitutional Supremacy vs. Parliamentary Sovereignty

Constitutional supremacy is often contrasted with parliamentary sovereignty, a principle predominantly associated with the United Kingdom's uncodified constitution. The key difference lies in where the ultimate legal authority resides.

In a system of constitutional supremacy, the constitution is the supreme law, and all governmental bodies, including the legislature, are bound by its provisions. The courts typically have the power of judicial review to strike down any law passed by the legislature that contradicts the constitution. This means that Parliament (or Congress) is not supreme; the Constitution is.

Conversely, under parliamentary sovereignty, Parliament is the supreme legal authority. It can make or repeal any law, and no court can declare an Act of Parliament unconstitutional or invalid. ¹While the UK Parliament operates within certain conventions and can choose to respect international human rights treaties, legally, it can legislate on any matter, and its acts cannot be overturned by the courts on constitutional grounds. The primary checks on parliamentary power are political, rather than legal.

FAQs

What is the primary purpose of constitutional supremacy?

The primary purpose of constitutional supremacy is to establish the constitution as the highest law, ensuring that all government actions and other laws adhere to its fundamental principles and protect citizens' rights. It provides a stable legal framework and prevents arbitrary exercise of power.

How does a country establish constitutional supremacy?

A country establishes constitutional supremacy by formally adopting a constitution that explicitly declares itself to be the supreme law of the land. This is often accompanied by the establishment of an independent judiciary empowered with the authority of judicial review to enforce the constitution's provisions.

Can a law be passed that goes against the constitution in a system of constitutional supremacy?

No, in a system of constitutional supremacy, any law passed by the legislative power that is found to be inconsistent with the constitution is considered invalid. Courts, through judicial review, can declare such laws unconstitutional and unenforceable.

Does constitutional supremacy guarantee perfect governance?

While constitutional supremacy provides a strong framework for limited government and the protection of rights, it does not guarantee perfect governance. Its effectiveness depends on various factors, including the independence and integrity of the judiciary, the commitment of political actors to constitutional principles, and the active participation of citizens in upholding the rule of law.