Constitutionality
Constitutionality is not a verdict delivered at birth. Every law, every official act, every government procedure begins as constitutional by default. It stays that way unless a legitimate authority, working through a legitimate mechanism, declares it otherwise. That quiet presumption shapes legal systems around the world. Two deeper questions follow from it: who holds the power to challenge that presumption, and under what conditions does it ever fail? The answers vary widely, and the contrasts between legal systems can be striking.
When a proper court finds that a legislative act conflicts with the constitution, it declares that law void. The nullification can be total or partial; it may strike the entire statute or only the offending provisions. That authority is not distributed the same way in every legal system. In some countries, any court can make this determination. In others, the power belongs exclusively to specialized constitutional courts, whose sole purpose is ruling on the validity of statutes. Many jurisdictions place the final word with a supreme court or constitutional court. Its opinion on whether a law or official action is constitutional cannot be appealed further. In a handful of countries, however, this entire apparatus is simply absent. Legislatures there face no judicial check on their laws whatsoever.
The United Kingdom and New Zealand share an unusual constitutional position. Neither country has a codified constitution of the sort that courts can measure legislation against. Their legislatures can pass any law they choose, with no mechanism for a court to call it unconstitutional. The Netherlands and Switzerland take a different path. Both have written constitutions, but neither grants its courts the authority to strike down legislation on constitutional grounds. In Switzerland, however, voters retain a direct remedy. By petitioning for a plebiscite, Swiss citizens can force a public vote on whether a piece of federal legislation should stand or be repealed. What counts as unconstitutional, and who can even commit such a violation, introduces a further layer of complexity.
A politician exercising powers outside those granted by their constitutionally-established office acts unconstitutionally. A second category involves government actions that block an individual from exercising a right the constitution explicitly protects. Both examples share a common thread: constitutions, at their core, define the powers of government. National constitutions typically bind government actors alone. Private citizens and corporations fall outside the constitution's reach in most systems. Only governments possess the capacity to violate a national constitution. Acknowledged exceptions exist, and their shape depends on the particular jurisdiction. Constitutional review extends further than many assume. It can reach not just national legislation but also the statutes passed by the legislatures of individual states or provinces.
Common questions
What does constitutionality mean in law?
Constitutionality is the quality of being acceptable under a supreme law. A law, procedure, or act is constitutional by default unless a legitimate authority declares it unconstitutional through a legitimate mechanism.
Which countries have no mechanism for courts to rule on the constitutionality of laws?
The United Kingdom and New Zealand have no codified constitution against which courts can test legislation. The Netherlands and Switzerland have codified constitutions but do not grant courts the authority to strike down laws on constitutional grounds.
How do Swiss citizens challenge the constitutionality of a federal law?
Swiss voters can petition for a plebiscite, which forces a direct public vote on whether a piece of federal legislation should stand or be repealed.
What makes a government action unconstitutional?
Two categories apply: a politician acting outside the powers of their constitutionally-established office, and any government action that prevents an individual from exercising a constitutionally-protected right.
Can state or provincial laws be declared unconstitutional?
Yes. Statutes enacted by subordinate-level legislatures, such as those of a state or province, can be declared unconstitutional just as national legislation can.
Who has the final say on constitutionality in most legal systems?
In many jurisdictions, a supreme court or constitutional court serves as the final legal arbiter. Its rulings on whether a law or official action is constitutional cannot be appealed further.
All sources
3 references cited across the entry
- 2Encyclopedia of the Philosophy of Law and Social PhilosophyTanasije Marinkovic — Springer, Dordrecht — 2023