The Constitutional Credentials of State Constitutions

42 Pages Posted: 9 Jan 2013

See all articles by Cheryl Saunders

Cheryl Saunders

University of Melbourne - Law School

Date Written: January 9, 2013

Abstract

This article examines the jurisprudential character of sub-national constitutions in federal-type systems. Many, although not all, of the constituent units of federated states have constitutions of their own. Constitutions of this kind, however, do not neatly fit accepted theoretical accounts of the nature of Constitutions, in at least two ways. First, the constitutions of constituent units are not superior law, but typically are subject to the federal constitution and sometimes also to federal legislation. Secondly, there is a degree of ambiguity about the source of constituent authority for the constitutions of constituent units, centred on the identity of the relevant ‘people’. This apparent tension between theory and practice derives from the intersection of two contemporary debates: on federalism, including comparative federalism and one the nature and practice of constituent power. The article illustrates the tension in play in the context of one federation, Australia, with particular reference to Australian State practices in making and amending constitutions and the continuing legal uncertainty about the scope and depth of the power to entrench State constitutions. In this particular case it argues that Australian constitutional law and practice would be enhanced by a heightened consciousness of the significance of State constitutional instruments. More generally, however, it reaches two sets of conclusions. First, the extent of the theoretical difficulty varies between federations in different constitutional traditions. Secondly, the tension is diminished and may disappear over time by the increasing flexibility of constitutional conceptions in conditions of constitutional pluralism.

Keywords: comparative constitutional law, comparative federalism, constituent power, Australian state constitutions, entrenchment

JEL Classification: K00, K19, K39

Suggested Citation

Saunders, Cheryl Anne, The Constitutional Credentials of State Constitutions (January 9, 2013). Rutgers Law Journal Vol. 42, No. 4, U of Melbourne Legal Studies Research Paper No. 621, Available at SSRN: https://ssrn.com/abstract=2198646

Cheryl Anne Saunders (Contact Author)

University of Melbourne - Law School ( email )

Centre for Comparative Constitutional Studies 723 Swanston Street (2nd Floor)
Parkville, Victoria 3010
Australia
61 3 8344 0753 (Phone)
61 3 8344 9374 (Fax)

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