Exploring Constitutional Statutes in Common Law Systems

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Constitutional statutes challenge the traditional dichotomy between regular statutes and constitutional provisions. They are supposedly statutes, enacted by the legislature, yet enjoy some kind of a constitutional status. I argue that constitutional statutes might mean different things to different political actors (including judges) and academics within the same legal system and across countries. I contend that we should analyze constitutional statutes along two vectors: what makes these statutes constitutional (identification) and what are the ramifications of such identification (consequences). The answer to the first question affects the results of the second. I show that these unique statutes can be identified as constitutional based either on the process of their enactment, which garners broad popular support, or on the importance of their content. Their content grants them a constitutional status in two scenarios: either, because it has broad ramifications on society, and/or because the legislature attests that it’s important enough to deserve a special procedure for its amendment (entrenchment language). Constitutional statutes discussed in the literature and jurisprudence are often treated as though they are made of one cloth, when in fact they belong to different categories based on the justification for, as well as ramifications of, their constitutionality. In this article, I develop and apply this theory with respect to the US, UK, Canada, Israel, New Zealand and Australia.

Suggested citation:

Exploring Constitutional Statutes in Common Law Systems, in Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, Applications 64, 64-86 (Richard Albert & Joel I. Colón-Ríos eds., Routledge 2019).