Legislative Supremacy Research Articles

The Supreme Court and Civil Liberties

Of the plan suggested by its title (intended to embrace amongst other things some treatment of the Canadian BiU of Rights and relevant aspects of the distribution of legislative authority) this paper as delivered is confined to single part dealing with the rule of law. Roncarelli v. Duplessis, probably the single most celebrated of the Supreme Court's decisions, is chosen as the source of four themes. Each involves conflict between the individual's rights and liberties and governmental power. The author argues that lawful governmental action especially competent legislation and anything which is authorized by competent legislation is damnum sine injuria. Some of the harshest consequences of legislative supremacy have however been mitigated by various common law rules, notably those governing natural justice, the prerogative remedies, mens rea in the criminal law, the condition of reasonable ness implied into at least some statutory powers, and the restriction of subdelegation. The author examines critically the work of the Supreme Court on these subjects, as also on the matter of access to the courts for redress, question central to individual liberty, both as regards the jurisdiction of the Supreme Court of Canada itself, and that of the other superior courts.

Pickin and Its Applicability to Canada

Canadian judicial respect for the legislature's supremacy over the courts has pervaded the interpretation of statutes and the elaboration of our common law. Because of this fact it is important that we understand the nature and limits of judicial review of legislation. One significant issue in this regard is the extent to which the courts may examine the legislative process leading up to the enactment of a bill. This issue came before the House of Lords in the decision of British Railways Board v Pickin. The author traces the elements of the doctrine of legislative supremacy to the doctrines of the conclusiveness of statutes and the legislature’s inherent right to control its internal proceedings. The Paper examines whether such doctrines are applicable to Canada.

The Status of Fundamental Individual Rights in the Absence of a Written Constitution

To reconcile the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve. Jellinek,The Declaration of the Rights of Man and of Citizens(1901).The legislative authority in Israel is all-powerful. Like the English Parliament, the Knesset “can do everything but make a woman a man, and a man a woman”. In the absence of a formal written Constitution, the Legislature enjoys legislative supremacy: the laws of the Knesset stand at the top of the normative legal order of the State, paramount in the prevailing legal system. Ranged against such a Legislature-giant, whose power knows no formal restraint, the Courts often feel like Lilliputians facing a Gulliver. There is, indeed, justification for this sense of inferiority harboured by the Judiciary. It is undoubtedly true that in the process of adjudicating disputes—between two individuals and between an individual and the authorities—judges apply, construe, and develop the existing rules of law and impart life to them.

The Courts and the Legislative Supremacy of the Knesset

Israel, unlike most modern States, does not have a Constitution embodied in a formal document which lays down the basic political assumptions on which the system of government is founded, and which is considered the “supreme law of the land”. The student of Israel's Constitution must, as in the case of the British Constitution, collate his country's Constitution, including its unarticulated “major premises”, from a close study of the practical workings of the system of government and from a number of diverse sources of varying legal force.From a study of the workings of the system of government, Knesset (Parliament) legislation and the decisions of the courts, it would appear that Israel's courts, lawyers and others have asserted, almost without demur, the doctrine of the legislative supremacy of the Knesset as the underlying unarticulated major premise of Israel's Constitution. In accepting that assumption they seem to have chosen to follow the constitutional trail blazed by their British forerunners. This article is intended to test that assumption and to establish its exact application in the legal system.

IV. The Civil List in Eighteenth-Century British Politics: Parliamentary Supremacy versus the Independence of the Crown

In the constitutional evolution of eighteenth-century Britain a major problem was the resolution of the tensions which arose between the executive powers vested in the Crown and the legislative supremacy of Parliament. Although the seventeenth-century conflicts of Crown and Parliament had settled the question of ultimate supremacy in favour of Parliament, eighteenth-century politics, by common consent, were confined to the level where a balance of power could be seen to operate, in which king, Lords, and Commons exercised agreed functions and powers and where the ultimate weapon—parliamentary supremacy—need not be used. The independence of the Crown—however it may have operated in practice—was a cardinal doctrine of the ‘mixed and balanced’ constitution. Although this doctrine was usually invoked to support the right of the king to choose his own ministers, it gave an important constitutional role to the Civil List, for by supplying the Crown with a financial provision not subject to parliamentary control the Civil List served the pur-pose of supporting the independence and the ‘influence’ of the Crown. The uncontrolled expenditure of the Civil List, with its large number of attractive places, pensions, and other benefits, was an important part of that ‘influence’ which some considered necessary for the effective exercise of executive power and which others decried as a threat to the independence of Parliament. The disputes and jealousies created by the Civil List developed in the reigns of George I and George II and came to a climax in the reign of George III. The result was an alteration of the constitutional foundation of the Civil List which further weakened the doctrine of the independence of the Crown and which marked an important step in the evolution of parliamentary government.

Harris and Others v. Minister of the Interior and Another.

35British Commonwealth of Nations — Sovereignty and Independence of the Dominions — Position of Dominion Legislatures Prior to Passing of the Statute of Westminster — Effects of Statute of Westminster — Whether South Africa Became a Sovereign Independent State — Whether the Statute Established Legislative Supremacy of South African Parliament — Whether Courts of the Union Deprived of Power to Review Validity of Acts of Parliament in the Light of the Constitution.

The Politics of the Twenty-Second Amendment

O N FEBRUARY 27, 1951, the thirty-sixth state ratified the Twentysecond Amendment. Thus ended efforts made since 1789 to fill in the omission left in the Constitution by the framers concerning presidential re-eligibility. Undoubtedly party rancor and personal hatred were among the factors that contributed to the proposal and ratification of the amendment. But there were more substantial stakes involved. The presidency is today the chief institution in our government. But it is not the only institution. Political forces express themselves through institutions. Some forces find one institution, some another, amenable to manipulation. Without undue oversimplification it may be said that the presidency has proved to be the vehicle most appropriate for the nationalizing, centralizing, and unifying forces in our society; the Congress, the states, and the local party organizations have been most susceptible to local, particular, and fragmentizing forces. The Twenty-second Amendment was a victory, which however in the nature of things can hardly be a final victory, of the devisive over the unifying. The Federalist attests that the potentialities of the presidency were in some degree foreseen at the time of the adoption of the Constitution. Prohibition of re-election was even then considered as a device for limiting the presidency. George Washington's refusal of a third term, erected into a political principle by the example of Thomas Jefferson, established a two-term tradition. From Jackson to Lincoln a one-term tradition flourished, and was quite candidly justified as an expression of the Whig philosophy of legislative supremacy. Lincoln broke with tradition and his re-election restored the two-term tradition, which enjoyed a precarious life until 1940. Those who had an interest in applying limits to presidential tenure were never satisfied with the force of tradition. Between 1789 and 1947 no less than 270 resolutions to limit eligibility for re-election were introduced in Congress.' Moreover, the frequency of such proposals increased sharply after 1900.2 It seems safe to say that these proposals reflect some-

Constitutional Documents of East-Central Europe

The new constitutions of the countries which now compose the so-called Soviet satellites, and of the ex-satellite, Yugoslavia, are set in a historical background which helps to explain their nature and their draftsmanship. Constitutional government, as it is known in Western Europe and in the United States, is unknown in Eastern Europe, with the exception of Czechoslovakia and of Finland. The latter country, however, is not included in our consideration. Stabs at western-type constitutionalism have been made occasionally. At a surprisingly early date, in 1879, the so-called Tirnovo constitution of Bulgaria included many liberal stipulations. Similarly, the Polish constitution of 1921, which was written primarily in order to curb Josef Pilsudski, was a democratic document. But neither of them prevailed in theory nor in practice, and the people of Communist Europe may therefore be expected to take constitutional documents in their stride even if their governments rule as they please and the civil enumerated thereunder remain a constant mockery to reality. There is a basic difference between constitutions in a democracy and a dictatorship. In a democracy a constitution, whether written or unwritten, whether supported by judicial review or under a system of legislative supremacy, is designed to limit, to restrain.' Constitutional government in the western sense is therefore limited, restrained government. But limitation and dictatorship are mutually exclusive terms, and while satellite Europe has a number of interesting constitutions, it does not have constitutionalism. It follows that constitutions of democratic countries present different questions to the analyst than is the case with those of dictatorships. When studying democratic constitutions, we are concerned with the organization of state and government, with the relations between government and citizens, and with the basic rights of the citi-

The Interpretation of the British North America Act

In accepting the honour of writing an article for The Cambridge Law Journal, and in deciding to review some aspects of Canadian constitutional law, I realize that I must assume a good deal of knowledge on the part of my readers, otherwise it would be difficult to know where to begin, where to end, what to say, what to omit. For my immediate purposes it will be sufficient to point out that Canada is a federation of nine provinces created under the British North America Act, 1867, carrying on its executive, legislative, administrative and judicial activities in public and private law under that Act and its amendments and under the great landmarks of English constitutional law in so far as not modified or changed by validly enacted federal or provincial legislation. Legislative powers are divided between the federal and provincial legislatures in such a way as to exhaust the whole field, which is not fenced, as in the constitutional law of the United States, with any constitutional limitations. Granted the legislative power, the manner of its exercise cannot be questioned in the Courts by any arguments drawn from a Bill of Rights, or by the many refinements, moral, political or legal, which flow from ‘the privileges and immunities’ or ‘due process’ clauses of the American constitution. In Canada the doctrine of legislative supremacy prevails. Canadian legislative powers are distributed under the creating Act of 1867. To the provincial legislatures belong certain exclusive enumerated powers under section 92, while, under section 91, the undefined residue belongs to the parliament of the Dominion. For the moment detail is unnecessary. I purpose to view (a) the immediate historical evolution of these legislative powers in order to appreciate (b) the judicial process in relation to them. I shall not concern myself with the minutice of this process, fascinating as they are, but confine myself to certain aspects of it which have become fundamental. I shall conclude (c) with a short view of the treaty-making power, as already it is under further discussion in Canada in the hope of peace ahead. I have specially selected these points of view for a law journal, because federalism and federal law and the judicial process in relation to them are matters of perennial interest and are already in prominence in connexion with the proposed reconstructions of the world. In addition, the judicial process in relation to the British North America Act, 1867, provides an important chapter in the study of stautory interpretation—a subject of equal perennial interest. I refrain from adding anything of a comparative nature, for I have neither the space nor the qualifications to go beyond legal analysis and reach the economic and social life of other federations, without an expert knowledge of which comparative law is of little worth.

Decree Powers and Constitutional Law in France under the Third Republic

In the World War period and after, the use of extraordinary powers by the executive for legislative purposes became so widespread in Europe that constitutional theorists began to find it convenient to give up the doctrine of legislative supremacy. The constitutional basis for these extraordinary powers has been found in one of two ways: either the parliament may authorize the government to exercise certain legislative functions by way of delegation, or certain provisions in the constitution may be interpreted as giving the executive the right under certain circumstances not only to take specific administrative steps, but also to issue rules of a more general character. In either case, the question invariably arises as to how far the delegation of power may go, or as to the degree to which alleged constitutional emergency provisions may be used to supersede parliamentary legislation.In France, no constitutional emergency power is provided in the “organic” laws of 1875 which could give a starting point for independent rule-making activity. A law of April 3, 1878, defined very closely the conditions under which a state of siege may be declared and surrounded such a declaration with elaborate provisions for parliamentary supervision. It is apparent that this statute does not allow the government to decree rules of a general character.

The Suppression of Convocation in the Church of England

“Let the Church be free and hold her rights and liberties inviolate.” Disregarding this opening dictum of England's time-honoured Magna Charta, Henry VIII stamped Erastianism lastingly upon the Church of England. By three epoch-making Acts of parliament, the second Tudor monarch established the judicial, legislative, and appointive supremacy of the crown in ecclesiastical affairs. Since his time the Church of England has known no hour of complete ecclesiastical autonomy. In recent years the Prayer Book controversy has brought this arresting circumstance clearly to the light. What is more important about a church than its Prayer Book. its forms of worship, its articles of faith, its liturgies? Yet in 1927 and again 1928 the world witnessed the strange spectacle of a British House of Commons comprising men of every faith, Roman Chatolic, Protestant, Christian Scientist, and even the Parsee Communist, Shapurji Saklatvala, carefully weighing and sifting theological niceties and in a single spectacular debate decisively rejecting the overwhelming opinion of the church courts, diocesan, provinical, and national.

The Course of Judicial Review in the State of Ohio

The first constitution of Ohio was framed in 1802, and was not submitted to popular vote for approval. Fashioned by followers of Thomas Jefferson, the new government had as its cardinal principle the doctrine of legislative supremacy. With no power over patronage, and with the veto power denied to him as well, the governor was but a “shadow executive.” Since the judges were appointed by the legislature for the limited term of seven years, the judiciary also played a subordinate rôle.Although the fundamental character of the constitution was conceded, it was a question in the mind of many as to who should determine the nature and scope of that instrument. To ardent Jeffersonians, this matter presented little difficulty; in their judgment, the legislature was fully competent to settle any question that might arise as to the nature of the constitution.