ABSTRACT
A vibrant discussion currently underway in common law systems explores the notion of “constitutional statutes” and the related phenomenon of “quasi-constitutionality.” The phenomenon of “constitutional statutes” poses an interesting conceptual challenge when such statutes enjoy the characteristics typical of the formal constitution. Bundling together the idea of a “constitution” with the idea of a “statute” seems paradoxical. The constitution with a big-C (or the formal constitution) came to be identified with the following three characteristics: identification, supremacy, and entrenchment. Identification means that it is relatively easy to identify the various parts of the constitution. There is a commonly accepted document or set of documents that citizens and elites alike refer to as the country’s constitution. Supremacy means that the legal system includes a hierarchy of norms that defines the constitution as supreme over regular law, particularly statutes. Thus, a statute should not infringe on a constitutional provision, and, if it does, the courts are typically authorized to exercise judicial review to protect the supremacy of the constitution. Lesser remedies than invalidation may also be the result of the supremacy of the constitution. Entrenchment means that the constitutional amendment process is typically more arduous than is the process of amendment of regular statutes. Obviously, different countries offer a spectrum of these characteristics and the fulfilment of the requirements is often a matter of degree. Nonetheless, all three characteristics are intended to distinguish between statutes and the constitution.
