THE COURTS POWER TO DETERMINE A LEGISLATION PARTIAL UNCONSTITUTIONALITY (UNITED STATES AS A CASE STUDY)
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Abstract
It's common knowledge that a judicial body handles the oversight of a law's constitutionality to check if it aligns with the constitution's provisions. Most countries adopt this approach. Yet, the courts' authority to decide on a law's unconstitutionality sparks debate. The United States, with one of the oldest most prosperous and influential systems, faces issues with this power in practice. These problems relate to its application and the principle of separating powers.
When courts review a law's constitutionality, they don't aim to scrap the entire law if it's unconstitutional. Instead, they consider a claim about the law's unconstitutionality in a "defensive form." This claim might target the whole law or just parts of it. In the latter case, if the court finds a specific section unconstitutional, it can nullify that part through "severability." The rest of the law remains intact. However, this "partial unconstitutionality" approach has its own set of problems. For example, it borrows from contract law, which differs from constitutional law in many ways.
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Footnotes:
- During the debates surrounding the ratification process, both Federalists and Anti-Federalists believed that the judiciary would possess the power to invalidate laws deemed unconstitutional. A notable illustration of this perspective can be found in Federalist Paper No. 78, authored by Alexander Hamilton, see
- Charles H. Burr, Unconstitutional Laws and the Federal Judicial Power, University of Pennsylvania Law Review and American Law Register, Vol.60, No.9, June 1912, p.624.
- See also Omar El-Abdallah, Supervision of the Constitutionality of Laws (A Comparative Study), Damascus University Journal, Volume 17, Issue 2, 2001, pp.11-12.
- For more details about the court, see Mohammed Lamine Laadjel Adjel, The Limits of Constitutional Oversight: An Approach in Comparative Systems, Journal of Judicial Reasoning, Biskra, Issue 4, March 2008, pp.145-146.
- The author asserts that these perspectives are entirely misguided and lacking in basis. In fact, he argues that the authority to deem state laws and congressional acts unconstitutional was explicitly conferred by the framers of the Constitution, as outlined in the document itself, to serve the interests of the federal judiciary, see Charles H., Op.Cit.
- The Constitution does not explicitly mention the power of judicial review; instead, the ability to declare laws unconstitutional is derived from implied powers found within Articles III and VI of the United States Constitution.
- Warren H. Pillsbury, Power of the Courts to Declare Laws Unconstitutional California Law Review, Vol.11, No.5, July, 1923, p.313.
- The United States was the first to embrace this concept by adopting the jurisprudence of the Supreme Court, which granted it the authority to oversee the constitutionality of laws. Following this example, Switzerland mirrored the United States' approach, leading to the establishment of its own constitution in 1874, see Hacebe Naceur Tahar El-Mouhanna, Supervision of the Constitutionality of Laws: Iraq as a Model, a thesis as part of the requirements for obtaining a Master’s degree in Public Law, Arab Open Academy in Denmark, 2008.
- Article 21, paragraph 03 of the Universal Declaration of Human Rights of 1948.
- For details see American Revolutionary War (1775–1783), Wikipedia, the free encyclopedia, last edited on March 13th, 2017, at 06:44.
- When Jefferson won the presidency in 1800 and was an opponent of federalism, he developed a program to control the judiciary, see http://www.mohamah.net/
- John Marshall (1755-1835) was the fourth Chief Justice of the United States Supreme Court. He increased its authority and shaped the Constitution with his wise interpretations. He established the final right of the Court with regard to the constitutionality of laws. He considered the Constitution a document that stipulates certain powers and a system that should be interpreted broadly, to give the federal government the means of effective action. He opposed the theory of states' rights and was subjected to much criticism. See Wikipedia, the free encyclopedia, last modified on February 26th, 2017 at 01:23.
- For more details, see Djammam Aziz, The Ineffectiveness of Oversight of the Constitutionality of Laws in Algeria, Master’s Thesis, Mouloud Mammeri University, Tizi Zouzouz, 2012, p.41.
- Warren H. Pillsbury, Op.Cit. pp.316-317.
- An example of this is the federal government's seizure of the regulation of domestic railroad tariffs and the state railroad commissions' exclusion of much of their jurisdiction over these tariffs. Another stage is the distress arising from the increasing complexities of the state-federal jurisdiction dispute, such as the difficulty of drawing the line between interstate commerce and domestic commerce in all its aspects. This is a political, not a legal, question, see Railroad Commission of Texas From, Wikipedia, the free encyclopedia
- In this regard, the late Henry Morse Stephens, a great professor at the University of California, says that the American government, an earlier form of popular government, was improved by peoples who later achieved political freedom, and the parliamentary character of the government embodies this later development, and is the best practice, and so in parliamentary government, the courts have no power to invalidate laws passed by Parliament.
- See Issam Ali Debbes, Constitutional Oversight of Independent Regimes, Journal of the Baghdad College of Economic Sciences, Issue 24, 2010, p.287.
- Recent authors have indicated that certain courts in Europe and Canada are beginning to make strides in recognizing this authority in specific instances, although they continue to assert that it remains a matter of entitlement.
- The concept emerged within the federal government of the United States over two decades following the Constitution's ratification, during a period when Jeffersonian Democrats criticized the judiciary for misinterpreting the framers' intentions.
- The power of the courts to invalidate laws deemed unconstitutional was specifically discussed prior to the Constitution's ratification in Federalist Paper No.78, published in 1788, in which Alexander Hamilton argued that judicial review was essential for upholding a government constrained by limited powers, see
- It is undeniable that there have been instances where the courts have upheld conservative interpretations of economic and political philosophy, invoking the principle of "reasonableness" to override the collective will of the populace as demonstrated by their legislative assemblies, despite the fact that both the people and the legislation originate from the same source, Ibid.
- If the ultimate decision regarding the validity of proposed social legislation were entrusted solely to the legislature and the public, without any judicial intervention, the standing of the courts in the eyes of the populace would be enhanced.
- Constitutions, particularly in California, have evolved into lengthy and intricate documents, complicating the process of drafting new legislation. This complexity heightens the likelihood that newly proposed laws may inadvertently conflict with the Constitution, leading to potential constitutional challenges based on technical discrepancies, Ibid.
- For further information, please refer to the paper titled "Overview of Judicial Oversight of the Constitutionality of Laws in Light of the Principle of Separation of Powers," which was presented by the Egyptian Delegation at the World Conference on Constitutional Justice held in Rio de Janeiro, Brazil, from January 16 to 18, 2011.
- Charles A. Kent, Power of Judiciary to Declare a Law Unconstitutional, Hein Online -- 20 Am. L. Reg. 730, January to December 1872, pp.731-732.
- The United States Constitution does not clearly grant the power of judicial review, nor does it explicitly deny it. In contrast, the Virginia Constitution of 1776 articulates that any suspension or enforcement of laws by any authority, without the approval of the people's representatives, is detrimental to their rights and should not be permitted, see https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States#cite_note-11
- See in this regard, Maurice Duverger - translated by Dr.George Saad, Political Institutions and Constitutional Law: Major Political Systems, First Edition, 1992, p.110, quoted from The Balance of Powers in Contemporary Constitutional Systems, p.38.
- Randy Barnett, More evidence that the “judicial power” included the power to nullify unconstitutional laws, Washington Post, June 5th, 2015.
- The Federal Constitution of 1787 did not regulate the conflict of federal laws with the Federal Constitution, see Omar El-Abdallah, Op.Cit., p.11.
- The restrictions on the Constitution were contentious, as they placed the onus of addressing any laws or regulations enacted by Congress, or actions taken by the President or other officials that contradicted or lacked justification under the Constitution, solely on the judges. These judges, appointed by Congress, were required to adhere to the Constitution as mandated by each state.
- In civil law, the concept pertains to contracts and refers to the enforceability or legitimacy of the remaining provisions of a contract, even when certain conditions are deemed invalid. This principle is often described as the severability of the contract or the notion of a severable contract.
- Kevin C. Walsh, partial unconstitutionality, New York University Law Review, Vol.85, 2010, p.738.
- There are questions regarding the potential for the entire law to be invalidated and the court's power to isolate or "remove" the unconstitutional sections, allowing the rest of the law to remain intact. Additionally, there is concern that the presence of the invalid portion could render the law unenforceable., see Mark L. Movsesian, Severability in Statutes and Contracts, St. John's University, Faculty Publications, New York, 1995, p.41
- Shantanu Basu, octrine of Severability in Law, slideshare forum, pp.01-02, on:
https://fr.slideshare.net/shantanu_leo/doctrine-of-severability-in-law
- See the Indian Contract Act, 1872 which includes a definition of severability.
- The principle of severability asserts that if a portion of a statute conflicts with constitutional provisions, particularly those concerning fundamental rights as outlined in the Indian Constitution, that specific part can be removed while the remaining sections of the statute continue to hold validity.
Conversely, the principle of eclipse posits that a law infringing upon fundamental rights is not inherently void or valid from the outset; rather, it becomes enforceable only under certain conditions. These laws remain on the statute books and are applicable to prior transactions, but this principle does not extend to laws enacted after the constitution was established.
- Kevin C. Walsh, partial, Op.Cit., p.744.
- The principle is based on three foundations: relief, hypothetical legislative intent and contractual relief.
- Marbury v. Madison is a landmark ruling by the United States Supreme Court, issued on February 1st, 1803, and is widely regarded as one of the Court's most significant decisions.
Its importance lies not in the specific case outcome, but in the foundational principles it set forth, particularly the authority of the judiciary to assess the compatibility of legislative acts with the Constitution. This ruling established the precedent that courts have the power to invalidate laws that are found to be unconstitutional, thereby granting the Supreme Court a pivotal role as the first constitutional court in history.
- The concept of severability as recognized globally can be traced back to the pivotal case of Nordenfelt v. Maxim Nordenfelt Gun and Ammunition Manufacturing Co., Ltd. In this case, the manufacturer, Nordenfelt, who was engaged in the production of firearms, entered into an agreement to sell his business to the American inventor Sir Hiram Maxim. The terms of their contract stipulated that Nordenfelt would refrain from manufacturing firearms or similar products anywhere in the world and would not engage in any competitive activities against Maxim for a duration of 25 years.
- Nicola Christine Corkin, Developments in Abstract Judicial Review in Austria, Italy and Germany, Ph.D. thesis, University of Birmingham, 2010, p.11.
- Mark L. Movsesian, Op.Cit., p.42.
- There are those who contend that relying on a contractual approach is insufficient for addressing the separation of statutory provisions. In dealing with the severability of these provisions, it is suggested that courts should move away from the contractual method and adopt a textual approach. This would allow the court to remove any unconstitutional provisions while still upholding the remaining parts of the law, see Fred Kameny, are inseverability clauses constitutional, Albany Law Review, Vol.68 2005, p.1024, supranote 126
- Court rulings have established that the categorization of contracts and the relevant legal applications are matters determined by the court with jurisdiction over the subject. This determination is based on the court's interpretation of the intentions of the contracting parties and the underlying truth of their objectives, rather than the labels or terms they may have used in the contract itself.
- For details see Michael Grose, Construction Law in the United Arab Emirates and the Gulf, First Edition, John Wiley & Sons, Ltd. Publishing, 2016, p.259.