Exploring Constitutional Statutes in Common Law Systems

Abstract

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