Presumption Of Constitutionality Research Articles

Constitutional Court of the Republic of Kazakhstan: continuity and innovation

The article discusses some decisions of the Constitutional Council of the Republic of Kazakhstan on a number of issues of constitutional and international law. These legal positions, as a continuity, in accordance with paragraph 1 of Article 66 of the CLRK «On the Constitutional Court of the Republic of Kazakhstan», can establish the basis for the forthcoming activities of the recreated Constitutional Court of the Republic of Kazakhstan. The article emphasizes that constitutionality in the country will be ensured not only by the Constitutional Court, but also by all branches of the unified state power, every state body, and every civil servant throughout the country. The attention is drawn to the concept of «presumption of constitutionality» of acts of state bodies: laws; decisions of judicial and executive bodies.

Constitutionalism and the sacred cow: the secular mythology of the Indian Supreme Court

ABSTRACT This article examines the judicial discourse around cow protection laws in India, tracing the trajectory of the Indian Supreme Court’s reasoning in cases where the constitutional validity of anti-cow-slaughter laws was challenged in post-independence India. The mainstream scholarship on Article 48 of the Indian Constitution has emphasised the existence of a religious motive behind this constitutional provision and its apparent justification through utility-based economic reasoning. However, most critical writings utilise a simplistic, binary formulation: religious versus secular. Through a close analysis of the judicial decisions in which anti-cow-slaughter laws were constitutionally challenged, the article proposes a move beyond the religious/secular divide and attends to the implications of the uneasy coexistence of the secular and the mythical. It further demonstrates that the invocation of the common law doctrine of presumption of constitutionality has acquired the status of what I term ‘secular mythology’ in the context of anti-slaughter laws.

A core case for supermajority rules in constitutional adjudication

Abstract In this article, I present a conditioned argument—also called a “core case”—for using supermajority rules in constitutional adjudication. I hold that, given some assumptions, constitutional courts should replace majority rule with supermajority rules to declare statutes unconstitutional. I assume that (i) there are substantive standards for assessing the constitutionality of legislation; (ii) given reasonable disagreement, statutes should be presumed constitutional; (iii) my claims only apply to some constitutional adjudication systems; and (iv) my claims only apply to “well-functioning democracies.” Given these assumptions, I argue that constitutional courts should use supermajority rules to declare statutes unconstitutional for three reasons: first, supermajority rules may boost judges’ accuracy more than majority rule on mathematical grounds and on deliberative grounds; second, supermajority rules may increase constitutional courts’ reputation by signaling consensus; and third, supermajority rules may embody the presumption of constitutionality of legislation. I finish by tackling some possible objections. Specifically, I tackle the concern that, under supermajority rules, too many statutes that should be declared unconstitutional would stay constitutional; the concern that supermajority rules in constitutional adjudication could be used to erode a democracy; and the concern that, under supermajority rules, some declarations of unconstitutionality that one judges as correct may not have happened.

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

Wyrok o braku niezgodności jako trzeci rodzaj rozstrzygnięcia przed Trybunałem Konstytucyjnym

It is not specified in the Constitution nor in the Constitutional Tribunal Act what should be the exact formula of a ruling concerning constitutionality of the challenged normative acts. There are two main types of relationship between the normative acts which are indicated in the course of review of the norms, namely conformity and non-conformity. However, a ruling that the subject of the challenge conform or does not conform to the basis of review may not always precisely describe the relationship between the two norms. In some circumstances it is recommended to deploy other formula which will describe such relationship in a more adequate manner. In practice, a third formula of rulings has been developed in the jurisprudence of the Constitutional Tribunal, i.e. a ruling that a certain legal provision is not inconsistent with a specified constitutional provision. It differs in its meaning from the rulings on conformity and non-conformity. On the basis of the hitherto jurisprudence of the Constitutional Tribunal two sets of circumstances which lead the Tribunal to rule on the challenged provision’s lack of inconsistency with the normative act of higher rank may be distinguished. The formula is not inconsistent with has been applied both in order to confirm constitutionality of the challenged regulation and where the basis of review has been found inadequate with the challenged norm. At present the formula is not inconsistent with is extremely rarely used to indicate simple conformity. In the majority of cases it is applied in order to emphasise the lack of adequacy between the questioned regulation (the subject of a challenge) and the indicated normative act of higher rank (basis of review). If the basis of review is adequate with the subject of a challenge it means that there is a common ground of reference and the necessary connection between the two provisions that will enable an assessment of their interrelation. In the most recent Tribunal’s case law it is expressly underlined that it is the initiator of the proceeding that is under the duty to prove the adequacy between the norms. In the reasoning for his application he should bring forward arguments which will demonstrate, at least implicite, that the chosen basis of review is relevant and appropriate. Such a demonstration of the adequacy supplements the course of determining the scope of the constitutional review by defining the content of the provisions indicated as the basis of review and the subject of a challenge which are to be confronted against each other. In practice, the adequacy of the basis of review is often so obvious that there is no need for the Tribunal to put forward in the reasons for a ruling any arguments which will support it. The question of the kind of relationship existing between the subject of a challenge and the basis of review constitutes a first stage of the adjudication to the merits of the case in the proceedings before the Constitutional Tribunal. Where there is a lack of an adequate relation between those regulations, adjudication upon the constitutionality is objectively impossible since there is no appropriate ground for assessment of the challenged regulation. Failure to prove adequacy between the subject of a challenge and the basis of review results in an issuance of a judgment that the norms are not inconsistent. It should be qualified as an incomplete ruling as to the merits of the case. A judgment which includes a formula is not inconsistent with does not interfere in the actual legal system, nor does it directly affect the application of the challenged regulation in practice. However, it may indirectly affect courts’ rulings in particular cases. Being under the influence of the Tribunal’s judgment on the lack of inconsistency courts might refrain from applying particular regulations in some cases. Adjudication on the lack of inconsistency falls within the scope of the Tribunal’s competence to review hierarchical conformity of normative acts. It does not rebut the presumption of constitutionality of the challenged regulation. However, it also does not totally prevent subsequent review of the challenged regulation with the same basis of review. Such review wall be admissible providing that the adequacy between the challenged regulation and the basis of review will be pointed out and proven.

Rightism, Reasonableness and Review: Section 377A of the Penal Code and the Question of Equality

This paper examines the article 12 equality jurisprudence with specific reference to the case law and legal discourse over the constitutionality of section 377A of the Penal Code (Cap 224, 2008 Rev Ed). This implicates interpretive method, construing legislative purpose in pre-Independence laws which have been legislatively debated and retained post-Independence, issues related to interpreting constitutional rights, and the judicial role in the face of morally contentious legal questions. The prevailing test of ‘reasonable classification’ and the accompanying presumption of constitutionality has been criticized in two primary ways. First, that it has been misapplied; second, that it constitutes deferential review, in according primary weight to the ‘reasonableness’ of Parliament and political constitutionalism, which detractors urge should be replaced by a more robust test of judicial scrutiny. The article contests the argument that section 377A fails to satisfy the reasonable classification test, particularly because it serves no purpose or an inadequate purpose given its original rationale. It argues that calls to revise the reasonable classification test in favor of a preferred vision of substantive equality constitute an unwelcome invitation to ‘rightism’ and a ‘living tree’ approach to judicial review, which trades in value arguments based on an egalitarian liberal theory of the good. It argues that scoping equality through the reasonable classification test remains appropriate within a communitarian polity, given the constitutional roles of the courts and Parliament, the wide-ranging reach of equality to any differentiating law, constitutional amenability and what might be described as a ‘moral questions’ doctrine, which informs a calibrated approach to judicial review.

Pre-constitutional Laws in India: Beyond Presumption of Constitutionality

Abstract Recent judgements of the Supreme Court of India have done away with presumption of constitutionality for pre-constitutional laws in India. Regarded as one of the core principles in the study of interpretation of statutes, presumption of constitutionality assumes great significance when constitutionality of any law is under challenge. Removal of this presumption for pre-constitutional laws has far-reaching potential on judicial scrutiny of vires of pre-constitutional laws. However, the implications of such removal on pre-constitutional laws have not been studied. This article is an attempt to study such implications. I shall take example of Indian law on sedition, which is a pre-constitutional law, to demonstrate the impact of removal of the presumption.

The 'Void Ab Initio' Theory in Comparative Perspective: J. Marshall, H. Kelsen, and Beyond

The void ab initio theory is traditionally associated with the retroactive effect of the unconstitutionality of a statute, in diffused systems of judicial review; as opposed to the prospective effect of unconstitutionality, in Austria, the archetype of centralized judicial review. Nevertheless, both systems tend to converge on the basis of practical considerations. The paper argues that the void ab initio theory goes far beyond the time-factor of judicial review. It is tied to a robust theory of negative liberty; and substantive criminal law is its privileged field of application. The void ab initio theory goes back to Marbury v. Madison (1803). O. Field (The Effect of an Unconstitutional Statute, 1935) contrasted this view with the idea of the presumption of constitutionality of the law, and the case to case judicial review. The void ab initio theory was strongly criticized by Kelsen. He argued that a legal act “is not void, it is only voidable”. An unconstitutional act to be annulled “must legally exist, if it can be the object of a judgment by an authority.” Kelsen’s criticism is accurate, when the theory is unduly extended to the unconstitutionality of laws curtailing positive rights of the welfare state, e.g. salaries and pensions, as happened recently in Greece. Indeed, the void ab initio theory in the field of positive social rights encroaches on legislative competence, if it leads to the revival of preexisting legislation.

Verification of constitutionality of tax breaks: Russian and U.S. approaches

  Ensuring compliance with the generally accepted principles of law, protection of human and civil constitutional right and freedoms are attributed to a number of fundamental problems of the Russian and foreign law. Special place among them belongs to the problem of protection of constitutional rights of tax payers, particularly the contest of constitutionality of tax breaks. The essentially different approaches towards verification of constitutionality of tax breaks have established in the Russian Federation and the United States. Unlike the Supreme Court of the United States, the Constitutional Court of the Russian Federation refuses to verify the constitutionality of tax breaks based on compliances of the taxpayers, and thus in the author’s opinion, neglects the violation of constitutional norms. The goal of this article consists in examination of the problem of contest of constitutionality of tax breaks by the Russian taxpayers, and finding a possible way for its solution that would ensure compliance with the constitutional requirements in terms of tax incentivization. For achieving the set goal, the author resorts to comparative analysis of the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the United States on the questions of verification of constitutionality of tax breaks. The author believes that the Supreme Court of the United States leans on the presumption of constitutionality of tax breaks, while the Constitutional Court of the Russian Federation – on the fiction of constitutionality of tax breaks. The conclusion is made in the need for implementation of the U.S. experience in the Russian Federation due to positive assessment of the developed by the Supreme Court of the United States algorithm of verification of constitutionality of tax breaks and presumption of constitutionality of tax breaks.  

The Bill of Rights before the Civil War: State Sovereignty, Strict Construction, and the Presumption of Constitutionality

Excerpt from introduction: Anti-establishment at issue in American Legion is one of several First Amendment principles. In other areas of First Amendment jurisprudence, Free Exercise and Free Speech cases, the modern Supreme Court asks whether the government regulation unnecessarily restricts religious liberty or free speech. In a common constitutional query for adjudication of these questions, the Court first asks whether the right at issue is fundamental. For “fundamental guarantees,” of which Free Exercise and Free Speech qualify, the Court applies a heightened level of strict scrutiny against the state or national regulation, permitting only those regulations or actions for which the government proves that a compelling state interest is at issue and that the regulation is narrowly tailored to meet that government interest. As discussed below, the Supreme Court’s First Amendment jurisprudence contrasts sharply with the Bill of Right’s design and early interpretation. Matters concerning religion, speech, and press were reserved for the states. Through generations of precedents, the modern Supreme Court has inverted the Bill’s purpose. Below, I discuss the framing of the Bill, state sovereignty, strict construction, and the presumption of constitutionality. In the process, I examine early case law on the Contract Clause and the controversial Alien and Sedition Acts — one of the first major constitutional challenges where these views were examined.

Constitutional Judges as Agents for Development

Abstract This Article explores how constitutional judges can become agents for development and how they may wish to go about performing this role. Due to the high politico-economic stakes involved and the inevitability of trade-offs between competing interests, judicial review of developmental questions is liable to expose judges to negative fall-outs. At the same time, it is fairly common for Asian constitutions to expressly set out the parameters or objectives for economic development that the State is expected to realize, while simultaneously recognizing a suite of (socio-)economic rights, thereby providing textual ammunition to query the validity of a government’s chosen implementation in court. Against this reality, the Article suggests a range of coping mechanisms that can mitigate risks to judicial legitimacy. At its broadest, the decentralized model of judicial review offers judges opportunities to side-step controversial constitutional questions that are unavailable to the same extent, or at all, to distinct constitutional courts. When deciding on the merits of developmental claims, courts should combine a strong presumption of constitutionality as far as the substance of the law is concerned with robust scrutiny of compliance with procedural guarantees. Additionally, courts should be better equipped with knowledge about the methodologies used by and insights from other social sciences to enable them to better evaluate extra-legal evidence submitted. This will also make it possible to better anticipate the likely economic consequences of particular judicial findings, possibly with a view to tailoring their remedies accordingly.

James Bradley Thayer and the Presumption of Constitutionality: A Strange Posthumous Career

AbstractOne hundred and twenty-five years after its publication, J. B. Thayer’s classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law” continues to influence our...

미국 대통령의 헌법상 전쟁권한에 대한 국제법 규범 통합에 의한 입법적 규제

The U.S. Constitution accords the President the power to serve as the commander-in-chief of U.S. armed forces and also grants the Congress the power to declare war and the power to provide for and maintain military forces and traditionally brought about debates on the division of war powers between the President and the Congress. The key issue is whether either the President or the Congress has the superior war power. The 9/11 terrorist attacks on the United States in 2001 spurred the Bush doctrine. As the debates go through the impact of the 9/11 terrorist attacks, the pendulum has considerably swung to the president-centered view.BR In international law, the use of armed force by a state is generally prohibited under UN Charter Article 2(4) and only exceptionally allowed in such a case as self-defense under UN Charter Article 51. The Bush doctrine has caused serious controversies because its underpinning is the expansive view of the right to self-defense: the pre-emptive self-defense. The Bush doctrine justifies the use of force even in the absence of, or not necessarily in an immediate response to, armed attack by a state.BR The U.S. Constitution does not clearly set out whether the President can initiate war in the absence of congressional declaration of war and has left the question unsettled. In practice, the President has exercised his war power expansively and initiated almost all of the wars that the United Stated conducted thus far. This practice has been supported by the inherent prerogative theory and the theory of repetition-based validity.BR In addressing the question of the division of war powers, Judge Jackson’s three-prong test has been able to shed lights on the issue of the constitutionality of the president’s exercise of war powers. This test sets forth three kinds of situation when the constitutionality of the president’s exercise of war power is debated. The President may exercise the war power (i) in pursuance of congressional permission, whether explicit or implicit, (ii) in the absence of congressional permission or opposition, or (iii) in defiance of congressional intention, whether explicit or implicit. Through these three situations, the presumption of constitutionality of the President’s power ranges from the maximum to the minimum.BR The U.S. Congress enacted the War Powers Resolution in the aftermath of the Vietnam War in order to restrain the President’s exercise of war powers and also passed the Authorization for the Use of Military Force(AUMF) in response to the 9/11 terrorist attacks. The critical loophole has been that the Supreme Court in practice has avoided to carry out the judicial review on presidential acts of war on the basis of the political question doctrine.BR Given that the UN Charter and rules of international law specify conditions under which the right of self-defense can be limitedly exercised, an alternative way of restraining the president’s exercise of war power may be to incorporate such rules as necessity and proportionality into domestic legislations. It can harmonize both the needs for addressing new security threats such as terrorism and the regulatory demand for restraining the use of armed force, in a manner that respects the principle of separation of powers and the principle of checks and balances.

Control de constitucionalidad y legitimidad política

Este artículo analiza la relación entre el control judicial de constitucionalidad y la legitimidad política entendida como la capacidad de un sistema político y jurídico de generar respaldo para la implementación de las leyes y políticas, incluso por parte de aquellos que se opusieron a estas por razones sustanciales. El artículo señala que a pesar de que existen diferentes modalidades de control judicial, así como diversas y respetables clases de legitimidad que se derivan de la función judicial, el control de constitucionalidad no está diseñado para producir legitimidad política. En tal sentido, y ante la imposibilidad de solventar esta dificultad democrática, se propone una serie de mecanismos para mitigarla como es el caso de la exigencia de supermayorías para decidir, la necesidad de contar con una presunción fuerte de constitucionalidad y la obligación de ofrecer razones que aborden explícitamente las preocupaciones democráticas. Finalmente, el artículo hace un llamado a la civilidad en el litigio constitucional, con el fin de evitar la demonización del oponente y abrir espacios de legitimidad política en el control de constitucionalidad.

Interpretación conforme, clave para la legitimidad democrática en el control constitucional normativo

This research is about the tension between democracy and constitutionalism, which derives from judicial review of legislative (or popularly created) laws, i.e. from normative constitutional control of acts. The counter-majoritarian difficulty or dilemma lies on the principle that legitimacy of the State and that of authority in general, resides on the respect of the majority's will. I propose refute that difficulty or dilemma, through what I call “non objection triad”, which implies that constitutional judges begin the review assuming the constitutionality of legislative law under review (presumption of constitutionality), so they can only declare its unconstitutionality if it contradicts Constitution clearly and unquestionably (deference to legislator), and if one cannot interpret the law under scrutiny in a way it does not contradicts Constitution (consistent interpretation). This last duty is not only about law and constitutional technique, but, and above all, a consequence of respecting majority's will.

Watertight Compartments: Getting Back to the Constitutional Division of Powers

This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres — what the Privy Council once termed “watertight compartments.” This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme — particularly incidental effects, genuine double aspects, and limited ancillary powers — overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text.

(Constitutional Avoidance Doctrine Revisited)

Chinese Abstract: 中文：虽然合宪性解释方法在概念上会存在些许差别，但其所遵循的合宪性推定逻辑是相通的，即都体现了司法权对立法权的谦抑。合宪性解释方法中所含括的单纯解释规则，如果不与冲突规则在学理上加以区分，则很容易对合宪性解释产生认识上的偏差。目前合宪性解释方法所模本的欧陆经验，从源流上来说，最早其实可溯及至早期美国合宪性推定的理论与实践，并与回避宪法方法一脉相承。通过合宪性推定可以发现，合宪性解释方法可以从宪法方法与法律方法两个层面展开。把握其内在理路及权力逻辑，方可使其具有本土可能性。 English Abstract: Comparatively speaking, different jurisdictions may use different terms to express the constitutional avoidance doctrine. To some extent, the doctrine follows the principle of presumption of constitutionality, which somewhat denotes the deference of judicial power to legislative power. However, as to the substance of the doctrine in civil law system, we should distinguish between the interpretation rule which refers that relevant constitutional provisions are able to have direct effects on the statutory interpretation, and the conflict rule which refers that the court should refuse to rule on a constitutional issue if the case can be resolved on a non-constitutional basis. Currently, in the scholarship of Chinese law, much attention has been paid to the interpretation rule, even arguing that Chinese courts are able to activate the constitutional application through this doctrine in the process of adjudication of non-constitutional cases. This article is to clarify this doctrine in two different levels from a comparative perspective. One is the application of the doctrine in the process of constitutional interpretation by the constitutional review bodies; the other is the application of the doctrine in the process of statutory interpretation by ordinary courts in adjudicating cases.

Watertight Compartments: Getting Back to the Constitutional Division of Powers

This paper offers a fresh examination of the constitutional division of powers and the arguments in favour of a textualist approach to constitutional interpretation. It is divided into two parts: the first expounds the text of the B.N.A. Act and the exclusivity principle in particular, and the second makes the case for a textual approach to constitutional interpretation, in contrast to the “living tree” approach. In Part I, the author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres – what the Privy Council once termed “watertight compartments.” This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme - particularly incidental effects, genuine double aspects and limited ancillary powers - overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text.In Part II, the author argues that our courts must not deviate from the text of the Constitution as they have done in certain cases under the banner of “co-operative” or “flexible” federalism. The author discusses the history of textualism and demonstrates that it was the accepted method of statutory and constitutional interpretation for the first century after Confederation. This part also discusses the problems inherent in a progressive non-textual approach to constitutional interpretation, which has spearheaded the trend of co-operative federalism. Lastly, this part addresses some limitations upon a purely textualist approach, most notably the principle of stare decisis and the presumption of constitutionality.

The New Unconstitutionality of Juvenile Sex Offender Registration: Suspending the Presumption of Constitutionality for Laws that Burden Juvenile Offenders

In Smith v. Doe, the Supreme Court held that Alaska’s sex offender registration and notification statute did not constitute punishment and was therefore not susceptible to challenge under the Ex Post Facto Clause. In reaching that conclusion, the Court looked to the seven factors articulated in Kennedy v. Mendoza-Martinez. To evaluate those factors, the Court applied a presumption of constitutionality, conducting the sort of narrow factual inquiry characteristic of rational basis review. Since Smith, courts have disagreed as to whether sex offender laws are punitive when applied to juveniles, and the Supreme Court has not yet addressed the issue. This Note argues that the Court should suspend the presumption of constitutionality when conducting its ex post facto inquiry for laws that burden juvenile offenders. The Court should do so because the very rationales that underlie the presumption are inapplicable in both the case of juvenile offenders and the ex post facto context. In lieu of rational basis review, this Note proposes a new framework under which the Court may evaluate laws that burden juvenile offenders. Under this new framework, a law is automatically punitive when it activates one or more of three triggers. These triggers are activated when a sanction is (1) irrevocable for life, (2) substantially likely to cause severe psychological trauma, or (3) grossly disproportionate to the culpability of the offender.

The constitutional crisis in Poland as a negative model of Hans Kelsen’s constitutional judiciary idea

In the face of constitutional crisis in Poland, initiated in 2015 and ongoing to this day, it is essential for academics to describe legal events and rationales constituting the crisis using such measures so that issues associated with the crisis are descried in the most objective manner possible. This paper attempts to describe the rationale and activities of antagonistic parties to the dispute from the perspective of relevant issues, which one of the most prominent authors of the European idea of constitutional judiciary - Hans Kelsen pointed out in his paper “Essence and development of constitutional judiciary”, already in 1928. Deliberations covered in this article focus - from general issues - on the issues of systemic political motives as a threat to the guarantee of compliance of normative acts with the Constitution and issues relating to the authority competent to repeal unlawful acts. It also discusses specific problems concerning personal substrate of constitutional court, as well as the related issue of the presumption of constitutionality, and publishing of the court’s judgments. Comparison between topics undertaken by Kelsen with aspects of the constitutional crisis allows to draw a general conclusion that the actions of policy makers resembles a negative model of Kelsen’s idea of effective constitutional judiciary.