CONSTITUTIONAL COURTS' INTERFERENCE WITH THE CONSTITUENT POWER

Abstract

Constitutional courts, being constitutional organs leading with constitutional questions, in many cases interfere not with the ordinary Legislator, but with the constitutional legislator, that is with the constituent power, by enacting constitutional rules when resolving constitutional disputes between state organs or even by legitimately making changes to a constitution by means of adapting its provisions and giving them concrete meaning. CONSTITUTIONAL COURTS' RESOLUTION OF DISPUTES OF CONSTITUTIONAL RANK AND ENACTMENT OF CONSTITUTIONAL RULES The principle of the supremacy of the Constitution, particularly regarding rigid Constitutions, implies that the Constitution and all constitutional rules can be enacted only by the constituent powers established and regulated in the same constitution. This constituent power can be the people, directly expressing their will (e.g., by means of a referendum) or an organ of the “State acting as a derived constituent power. The consequence is that no constituted power of the State by itself can enact constitutional rules, except when expressly authorized by a constitution to participate in a constitution-making process. Nonetheless, in contemporary constitutional law, there are cases in which constitutions authorize, exceptionally and indirectly, organs of the State to enact constitutional rules. For instance, this is the case of parliaments when the constitution has authorized them to enact laws with constitutional rank (i.e., constitutional laws). In other cases, constitutions expressly authorize constitutional courts to enact constitutional rules when deciding conflicts regarding attributions of State organs, for instance on matters of political decentralization.