Constitutional Carve-outs

Abstract

Most modern constitutions contain a variety of express constitutional ‘carve-outs’ that narrow the scope of otherwise general constitutional norms. Carve-outs of this kind often reflect an attempt by drafters to create a form of constitutional ‘insurance’ for certain preferred legislative policies—or increase the likelihood that courts will uphold those policies as valid. The difficulty for drafters, however, is that there are multiple ways in which courts can approach the interaction between carve-outs of this kind and general constitutional norms: they can treat carve-outs as having purely evidentiary effect, as creating a special safe harbour for favoured forms of legislative action or, equally, as a true exception to general constitutional language, which supports an interpretive approach directly contrary to that intended by drafters. The same pattern applies for specific provisions seeking to broaden or extend the scope of general constitutional norms. Thus, while it is often hoped that specific constitutional language will offer greater predictability in constitutional interpretation, this underestimates the complex ways in which courts respond to the interaction between specific and general constitutional provisions. The article makes these arguments by reference to detailed constitutional case studies from India, South Africa and Australia involving affirmative action; and Canada, India and Australia on the scope of federal legislative power.