constitutional law essay questions and answers

constitutional law essay questions and answers

Constitutional Law: Essay Questions and Answers

1. Introduction

This course will examine the inter-branch relationships in each, with a focus on the separation and checks and balances of power between the branches. A thorough understanding of separation of powers and the system of checks and balances is crucial to understanding constitutional law. Because the allocation of power between the national government and the states has been the cause of moments of crisis and even armed conflict in American history, it has often been manipulated and reshaped, sometimes radically, by shifts in the judicial interpretation of the Constitution. This area of law has a special significance to the people of different cultural and political beliefs who make up this diverse nation.

The powers of each branch of the national government and the allocation of power between the national government and the states are critical to understanding the constitutional and political structure of the United States. In the absence of armed conflict, the relationship between the branches has rarely been raised to the level of crisis and confrontation. In those few cases where it has, the courts have been involved in mediating the dispute and usually have the final word in determining the constitutional allocation of the particular power. This is another example of how the interpretation of the Constitution is bound up in its application by the government and how the courts have effectively shaped constitutional law.

This course considers the various powers of each branch of the national government and the effects of their exercise on the distribution of power among the states and the federal government. It also considers the protection of civil liberties and civil rights. Because much of our constitutional law is bound up with the protection of individual rights, the course provides an excellent introduction to the modern understanding of constitutional law.

Constitutional law is a body of principles and rules written in the constitution or developed through jurisprudence. It is implemented and enforced by the organs of government to regulate the government’s structure, relations, and the rights of individuals. The Supreme Court’s primary role is to interpret the Constitution and limit the powers of the other branches of government using judicial review.

2. Fundamental Rights and Liberties

An example of this mode of operation was the case of R v Sec of State for Home Department ex p Leech (1994), which concerned the rights of a 70-year-old widower from Guyana who had been refused leave to stay in the United Kingdom. In his claim, Mr. Leech attempted to argue that he had a right to remain in the United Kingdom under European Community law. However, Sedley J held that he was precluded from relying on European Community law by a previous immigration Act of Parliament. Furthermore, Leech was also unable to argue any breach of common law natural justice principles. This was because, above and beyond the narrow grounds of judicial review, the courts interpreted legislation which conflicted with individual rights with a sinister attempt to avoid confrontation and by employing various restrictive techniques. Ch Laskin and Robinson provide a critical review of the rights jurisdiction and say that while it has been shown to effectively control the exercise of power and provide remedies for wrongs suffered, the scope of review has been narrow and grudging, and the attitude of the courts has been to avoid adjudicating on the merits of legislative and administrative decisions.

However, prior to the Human Rights Act, public law concerning the defense of individual rights was, to a fantastic degree, unsatisfactory. The suppliant procedure was slow, expensive, and reasonably lacking in real remedies, and critically, the attitude of the courts was restrictive and, on occasion, hostile. This, to a large extent, reflected the emphasis of administrative discretion, sovereignty, and statute. In addition, common law constitutional principles concerning individual freedoms were deemed to be weak and, on occasion, restricted in scope. In general, before the Human Rights Act, public law concerning the defense of individual rights was predominantly focused on the control of the executive, with limited qualifications to substantive policy objectives and individual rights and freedoms.

Fundamental rights and liberties concretize the high regard which every civilized society must have for the dignity and worth of the individual. They represent a profound commitment to the sanctity of the human personality, and they are a strong assurance that in a democratic society, the individual will be immune from governmental tyrannies.

3. Separation of Powers

The concept ‘separation of powers’ is incomplete both as a description of the constitutional arrangements of modern states and as a prescription for the governance of a state. Nevertheless, it has enduring value as a schema for the analysis of governmental arrangements and limits. The central question to be resolved in the design of a constitution is how to distribute governmental authority? One must discern the tasks the state must perform, and then assign each to an institution. Historical misunderstanding of the ‘separation of powers’ primarily derives from a failure to understand how the work essential to a state is to be identified and assigned to the institutions of government. Even Holmes, seeking Supreme Court invalidation of progressive legislation, desired only that each branch stick to its assigned tasks! The point is that in its modern form, once the work to be accomplished is identified, explicit assignment of task to institution will blur the separation of powers. An example is the situation in the UK, regarding ‘policy formulation’ as the task of the elected executive, it has government departments attached to ministries of the Crown and staffed by civil servants, doing policy research and making ‘proposals’ until the elected executive orders implementation. This is a movement of task from one institution to another, in this case from the elected executive to the civil service. Step by step judicial approval of this movement of task from executive to agency would mean that it is legitimate for the agency to exercise what is in reality executive authority. An episode in administrative law would not be able to be pried free from a context of constitutional law.

4. Federalism and State Powers

The division of powers between state and federal law is aimed to provide a balance of power and sovereignty between the two levels of government. This was initially described in the Engineers Case in 1920 as the doctrine of the original constitution. This meant that the High Court had to interpret the Constitution as a whole to determine the allocation of powers between the Commonwealth and the states, taking a flexible approach to the divisions implied by the Constitution. This was reaffirmed in 1983 with the case of the Incorporation of Willoughby City Council and will be explained in greater depth later in this essay. At the heart of all the interpretations, the ultimate aim is to preserve the integrity of Australian federalism stated in the early case of Peterswald.

Federalism is the division of governing powers and responsibilities between the federal and state governments. There were two basic propositions that said: the national government is supreme and the states are subordinate to it, and the federal government only has the powers that are delegated to it. In the Australian Constitution, this is shown in chapter five, which describes the powers of the Parliament. Section 109 of the Constitution solves the problem of overlap between federal and state laws. It states that where a state law is inconsistent with a federal law, the state law is invalid to the extent of the inconsistency. In the event when the national and state laws conflict, the High Court is entrusted with the constitutional matters to determine how federal powers prevail over state powers. This is described in the case of Melbourne Corporation. A major part of federalism is the division of the three powers. Generally, the states have retained greater control over areas of power associated with the judicial arm, such as the enforcement of criminal law and the establishment of courts.

5. Constitutional Interpretation and Judicial Review

Courts do not have the power to consider any policy matter, but only whether a statute is constitutional, and if so what is its effect. In British constitutional law, this task of preserving the principle of parliamentary sovereignty has been generally successfully achieved. However, in every legal system, there are occasions when basic points of law are overlooked in the legislative process which produces a statute, and the two classic examples lie behind the development of judicial review in the USA and the implied repeal principle in the Community law of the European Union. Any discussion of the place of judicial review in contemporary public law must start with these occasions, in which the courts are invited to undertake a task of constitutional interpretation. This is a very wide term which may embrace any situation in which a court is called upon in the course of deciding a case to construe a constitutional instrument or to subject the actions of public authorities to some standard in the light of a constitution. However, judicial review as a distinct procedure which is focused upon the legality of administrative action, and which has given rise to a substantial body of administrative law, has developed in relation to the decision of certain types of case, and in some jurisdictions, this has amounted to an exercise by the courts in delimiting the respective spheres of activity of the judiciary and the executive.