Exploring Constitutional Statutes in Commonlaw Systems

31 Pages Posted: 25 Feb 2018  

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: May 19, 2016


Constitutional Statutes seem to describe an oxymoron that challenges the traditional hierarchical dichotomy between regular statutes and constitutional provisions. Constitutional Statutes might mean different things to different political actors (including judges) and academics within the same legal system and across countries. This article argues that we should analyze constitutional statutes along two vectors: what makes these statutes constitutional (identification) and what are the ramifications of such identification (consequences). It further argues that the answer to the first question affects the results of the second. The article argues that statutes are identified as constitutional based on either the process of their enactment or their content, which may itself be subdivided into two classifications: content in terms of importance and content in terms of entrenchment language. Constitutional statutes discussed in the literature and jurisprudence are often treated as though they are made of one cloth, when in fact they belong to different categories based on the justification for, as well as ramifications of, their constitutionality. The article’s approach is examined with relation to the U.S., U.K., Canada, Israel, New Zealand and Australia.

Keywords: constitutional statutes; super-majority; implied repeal; quasi-constitutionality; explicit repeal; super-statutes

Suggested Citation

Weill, Rivka, Exploring Constitutional Statutes in Commonlaw Systems (May 19, 2016). Available at SSRN: https://ssrn.com/abstract=3123519

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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