The structures of constitutional review and some implications for substantive constitutional law
Among the important issues of constitutional design today is that of the structures of constitutional review.1 Historically a central question about constitutional design was whether to have a system of parliamentary supremacy or a system in which primary legislation was subject to review in some court for consistency with the constitution. Parliamentary supremacy did not exclude the courts entirely from enforcing the constitution. They could hold executive action unlawful where the action violated what the courts found to be fundamental rights and was unauthorized by legislation (the latter condition is known in common law constitutional theory as the ultra vires (“beyond power”) doctrine). And, they could hold delegated legislation – known by various names, such as “administrative rules” in the United States, “secondary legislation” in the United Kingdom and “decree-laws” in other systems – unlawful on the same two grounds: That it violated fundamental rights and was unauthorized by primary legislation. Further, courts could insist on a rather high degree of specificity in the authorization for executive action or secondary legislation depending on how serious they believed the infringement on fundamental rights. The key characteristic of systems of parliamentary supremacy, however, was that courts could not find unlawful primary legislation, executive action expressly authorized by primary legislation, or secondary legislation similarly authorized.
Systems of constitutional review add to all these possibilities the further one that courts can find primary legislation unlawful. Essentially all modern constitutions reject parliamentary supremacy in favor of some form of constitutional review, with New Zealand the...
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