The Constitutional Credentials of State Constitutions

Cheryl Saunders 

Melbourne Law School 
January 9, 2013

Rutgers Law Journal Vol. 42, No. 4
U of Melbourne Legal Studies Research Paper No. 621 
Abstract:      
This article examines the jurisprudential character of sub-national constitutions in federal-type systems. Many, although not all, of the constituent units of federated states have constitutions of their own. Constitutions of this kind, however, do not neatly fit accepted theoretical accounts of the nature of Constitutions, in at least two ways. First, the constitutions of constituent units are not superior law, but typically are subject to the federal constitution and sometimes also to federal legislation. Secondly, there is a degree of ambiguity about the source of constituent authority for the constitutions of constituent units, centred on the identity of the relevant ‘people’. This apparent tension between theory and practice derives from the intersection of two contemporary debates: on federalism, including comparative federalism and one the nature and practice of constituent power. The article illustrates the tension in play in the context of one federation, Australia, with particular reference to Australian State practices in making and amending constitutions and the continuing legal uncertainty about the scope and depth of the power to entrench State constitutions. In this particular case it argues that Australian constitutional law and practice would be enhanced by a heightened consciousness of the significance of State constitutional instruments. More generally, however, it reaches two sets of conclusions. First, the extent of the theoretical difficulty varies between federations in different constitutional traditions. Secondly, the tension is diminished and may disappear over time by the increasing flexibility of constitutional conceptions in conditions of constitutional pluralism.

Number of Pages in PDF File: 42

Keywords: comparative constitutional law, comparative federalism, constituent power, Australian state constitutions, entrenchment

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2198646