Quasi-Constitutionality and Constitutional Statutes

Forms, Functions, Applications

Richard Albert, Joel Colón-Ríos

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351201810
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the interstices among statutory enactment, constitutional convention and formal constitution in which quasi-constitutionality exists. It provides a focal resource that can serve as a point of reference for scholars interested in quasi-constitutionality as a whole, from national and transnational perspectives, expanding on its many forms, functions, and applications with recourse to comparative insights. The book is divided in three main Parts, each of them preceded by a separate critical introduction in which an informed scholar contextualizes the chapters and offers reflections on the themes they develop. The first Part, titled 'Forms', is composed of chapters that address, from a theoretical and comparative perspective, questions related to the recognition of constitutional statutes and quasi-constitutional legislation. The second Part is titled 'Functions', and contains chapters that explore the explanatory power of quasi-constitutionality in different institutional contexts. The third Part, titled 'Applications', considers the ways in which constitutional statutes and quasi-constitutionality operate in relation to particular tensions and debates present in various jurisdictions.

Part I

Forms

The comparative examination of (quasi-)constitutional statutes – an unstable discourse

Claudia Geiringer^*

What is a quasi-constitutional statute and how does it differ from an ‘ordinary’ statute (or, indeed, from an ‘ordinary’ constitution)? To get a sense of how unsettled these issues remain (even as a matter of domestic law but certainly as a question of comparative study), we need look no further than the fraught question of terminology. Why, we might ask, do we speak of ‘quasi-constitutional’ statutes at all? What work, if any, is the ‘quasi’ doing here? Why do we not just use the more forthright epithet ‘constitutional statutes’?

This terminological question attracted such energetic debate at the symposium that preceded this volume that it is worth taking a moment to unpick the nature of the difficulty. For those who come from a jurisdiction operating under a ‘capital-C’ (formal, written or supreme law) Constitution,¹ the term ‘quasi-constitutionality’ has immediate appeal. It denotes a status resembling in one or more important respects, yet not quite the same as, the formal Constitution. Helpfully, too, it leaves room in the terminological hierarchy for true ‘constitutional’ statutes – those that are formally incorporated into, or perhaps that share all the formal attributes of, the ‘capital-C’ Constitution.²

The prefix ‘quasi’ is doing some heavy lifting here. Even so, let us not miss the irony. At least in United States discourse, the phenomenon of quasi-constitutionality is being used by scholars to challenge the dominant tradition of American constitutionalism (one that is fixated on the formal document) and to re-invigorate earlier, and broader, traditions that view the constitution as a complete description of the rules, principles and practices that regulate public power and/or as an embodiment of fundamental values to which the polity is committed.³ The language of ‘quasi-constitutionality’ undercuts this project, just as the discourse on quasi-constitutionality seeks to advance it. A thing that is ‘quasi’, after all, simulates but is not the real thing.⁴

When one comes out, entirely, from under the shadow of the written Constitution, things get more complicated still. For countries that lack a ‘capital-C’ Constitution, the term ‘quasi-constitutionality’ is virtually unintelligible. In such jurisdictions, statutes have long been understood as an authoritative (perhaps even the most authoritative) source of constitutional law. Why, then, we might ask, have they suddenly become ‘quasi’?

Unsurprisingly, then, in the United Kingdom and New Zealand literature, the simpler term ‘constitutional statutes’ is almost invariably preferred.⁵ But this terminology embodies a conundrum of its own. According to the dominant tradition in these jurisdictions, the constitution is a broad stable that comprises all of ‘the system or body of fundamental principles under which a nation is constituted or governed’.⁶ A constitutional statute is that part of the constitution (so understood) that is found in statute law.⁷ This is an expansive definition, and one that (at least in its traditional form) repudiates any claim to elevated legal status for such instruments.⁸

The puzzle is that, although this tradition endures, it now sits alongside of (and indeed sometimes intermingles with) a newer discourse; one that uses the epithet ‘constitutional’ to denote ‘special’ in some kind of legally cognisable sense.⁹ In other words, within contemporary traditions of unwritten constitutionalism, the adjective ‘constitutional’ denotes both the common-or-garden and the special, depending on the circumstances and, indeed, sometimes simultaneously.¹⁰ All statutes are equal but some, it turns out, are more equal than others.

From the preceding discussion, it is apparent that terminological debates about how we should describe (quasi-)constitutional statutes do not rest on mere linguistic preference. Rather, they reveal fundamental ambivalences and instabilities in the nature of the enterprise in which we are engaged. Basic questions remain unsettled. What exactly is a quasi-constitutional (or constitutional) statute and how has it earned this status? What consequences flow from it having done so? And what function is served by a discourse on quasi-constitutionality, anyway?

This volume may well be the first concerted attempt to deal with these (and other related) questions from a comparative perspective, with the three illuminating chapters that make up this Part each offering a different lens onto them. In what follows, I begin with a brief introduction to each of the three chapters. I then use the space allotted to me to expand on the theme of instability. I explore some of the reasons why we find it so difficult to agree on the meaning of (quasi-)constitutionality (and on its legal ramifications), and I try to tease out both the challenges and the opportunities that this presents for comparative scholarship. Ultimately, I conclude that the great virtue of a discourse on (quasi-)constitutionality is that it provides us a tableau in which to explore what it is we are trying to signify when we talk of the constitution itself.

1. Scott Stephenson – the rise and recognition of constitutional statutes

The first chapter in this Part, by Scott Stephenson, uses the phenomenon of ‘constitutional statutes’ (his preferred terminology) as a lens onto the dichotomy between systems of written and unwritten constitutionalism in the common law world. For Stephenson, a ‘constitutional statute’ is one that regulates ‘a fundamental feature of the lawmaking process’ (defined broadly to include the basic structure and powers of the institutions of government, and any limitations on the exercise of those powers).

Stephenson makes two central points. The first is that, within both systems (albeit for different reasons) the post-War period has witnessed the increasing use of constitutional statutes in ways that have tested previously accepted understandings of the boundaries between statutory and formal (capital-C) constitutional change. So in countries that lack a capital-C Constitution, statutes have been used during this period to effect change of a kind that was previously considered to fall outside the regulatory competence of the unwritten constitution – most obviously, the regulation of a federal structure, and the enactment of bills of rights. And as well as extending into these (previously off-bounds) subject areas, these new-generation constitutional statutes have sometimes also possessed, or been found to possess, one or more of three ‘typical attributes’ of formal Constitutions: enactment by means of a special procedure, entrenchment, and/or normative superiority, enforced through judicial review.

Over the same period, in countries with a ‘capital-C’ Constitution, Stephenson points to a parallel development. Whereas previously, constitutional statutes were confined to the role of supplementing or substantiating the formal Constitution, during this period, they emerged as a means (perhaps even as the principal means) to pursue fundamental change. Thus substantial challenges to the role of the state – propelled, for example, by the emergence of the administrative state, the forces of internationalisation and globalisation, the civil rights revolution (in the United States) and the severance of ties with the United Kingdom (in the former dominions) – have been met not through constitutional amendment but, in the main, through legislative enactment.

In these parallel developments, Stephenson identifies a point of seeming commonality or convergence between systems of written and unwritten constitutionalism within the common law world. On the other hand, Stephenson’s second point is that this apparent bridging of the divide is, at least to some extent, undermined by patterns of judicial recognition within the two systems. In systems that lack a capital-C Constitution, courts have generally recognised and given effect to constitutional statutes, so long as the legislature has made sufficiently clear its intention to change a fundamental feature of the law-making process. The danger within such systems, however, is that if the legislature enacts a constitutional statute that appears ‘too ordinary’, the courts may treat it in the same way as ordinary law, undermining its capacity to bring about intended changes.

On the other hand, in jurisdictions that have a capital-C Constitution, the danger is the converse. If legislatures enact statutes that appear ‘too constitutional’, the statute may be invalidated for inconsistency with the formal Constitution. This means that the scope for the use of constitutional statutes in systems with a formal Constitution is more constrained.

2. Sergio Verdugo – how to identify quasi-constitutional legislation

Although Stephenson speaks across the written/unwritten divide, he confines himself to addressing the phenomenon of constitutional statutes within common law systems. The second chapter, by Sergio Verdugo, addresses the phenomenon through a very different lens. Verdugo examines ‘quasi-constitutional legislation’ (his terminology) in Western legal systems that possess a formal Constitution. Although he does not exclude common law jurisdictions from his inquiry, his chapter is richly informed by civil law practice, in particular, in relation to the enactment of ‘organic’ laws – a self-consciously constitutional form of statutory law-making.

Verdugo’s project is twofold: first, to develop a theoretical framework for identifying quasi-constitutional legislation (thus facilitating accurate comparative inquiry); second, to explore that framework by reference to the example of Chile.

For Verdugo, legislation is quasi-constitutional if it enjoys some or all of the key features of the formal Constitution – that is, the characteristics that make that particular Constitution distinguishable from the rest of the legal system. This approach is relative rather than absolute; what is quasi-constitutional depends on the particular qualities associated with the formal Constitution in each respective jurisdiction. Nevertheless, Verdugo is able to identity five characteristics which will generally render legislation quasi-constitutional. These are: the existence of substantial regulatory overlap with the subject matter controlled by the formal Constitution; some degree of protection of the quasi-constitutional instrument from ex-post facto judicial review on the grounds of unconstitutionality; supremacy (such that the quasi-constitutional instrument can be used to review ordinary legislation); rigidity (such that the quasi-constitutional instrument is harder to modify than ordinary legislation); and inclusion in the constitutional canon (such that the quasi-constitutional instrument is a privileged tool for interpreting the formal Constitution itself).

For Verdugo, quasi-constitutionality is a matter of degree. Quasi-constitutional statutes may exhibit o...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Preparing a written, codified Constitution for New Zealand: is there a need that can be met?
• Table of cases
• Table of legislation
• Introduction: The space between ordinary and constitutional law
• Part I: Forms
• Part II: Functions
• Part III: Applications
• Index