The Rise and Recognition of Constitutional Statutes

Abstract

This chapter studies the influence that constitutional statues have on the traditional distinction between systems with a 'capital-C constitution' and those without one. It makes two principal arguments. First, legislatures in parts of the common law world increasingly turned to constitutional statutes to pursue changes to the fundamental features of the lawmaking process in the second half of the twentieth century and early part of the twenty-first century. In countries without capital-C constitutions, constitutional statutes rose to prominence as a substitute for the enactment of a capital-C constitution, allowing legislatures to attempt to bring about the types of changes to their systems of government that were once generally thought to require a capital-C constitution. In countries with capital-C constitutions that are especially difficult to amend, constitutional statutes rose to prominence as a substitute for amendment to their capital-C constitutions, allowing legislatures to attempt to bring about changes to their systems of government without having to face the considerable hurdles presented by the formal amendment procedure. The rise of constitutional statutes thus cuts across the traditional divide in the common law world, appearing to be a point of commonality and convergence.

Second, however, the appearance of commonality and convergence is potentially misleading because the presence or absence of a capital-C constitution affects the way in which and the extent to which the judiciary recognises constitutional statutes. In particular, the judiciary has placed different challenges in front of legislatures seeking to pursue change by means of constitutional statute. In systems without a capital-C constitution, legislatures must be alert to the risk of enacting constitutional statutes that appear too ordinary. If a constitutional statute appears to be too similar to ordinary law, the courts may treat it in the same way as ordinary law, which potentially undermines its capacity to bring about its intended changes to the system of government. In systems with a capital-C constitution, legislatures must be alert to the risk of enacting constitutional statutes that appear too constitutional. If a constitutional statute appears to supplant or modify the capital-C constitution, the courts may invalidate the statute for attempting to circumvent the formal amendment procedure.

The distinction between systems with and without a capital-C constitution thus takes on a new form. The rise of constitutional statutes breaks down the divide insofar as it allows courts in systems without a capital-C constitution to undertake judicial review of ordinary laws in a similar manner to that which occurs in systems with a capital-C constitution. However, courts in a system with a capital-C constitution have the important and distinctive power to review constitutional statutes for compatibility with the capital-C constitution, which reduces the scope for legislatures in these systems to innovate by means of constitutional statute.

Keywords: Constitutional statutes, quasi-constitutional law