This paper looks into the concept of constitutionalism with specific reference to the concept of supremacy of the constitution in relation to the interpretation of other related statutes. But before looking at this, above mentioned it is imperative to examine how the institutions of organized society, law, and governance developed for it is through a knowledge of this that we can appreciate the sue generic nature of the constitution as a document. Thomas Hobbes in this article the Three Treaties of government established that in the ancient ages, the population was scarce and thus the resources were in abundance to cater to the needs of every person.
He states that as a result of the abundant resources the freedom of man was unlimited as he had access to everything he wanted even to another man’s property and body. With the increase in population and decrease in resources, the condition of man according to Hobbes became that of ware and tare, where every man was against the other that in such a society there existed no order and the rule of survival for the fittest dominated. The life as described by him was nasty brutish and short. It was later realized that the weak and minority could not as a result survive and therefore the people entered into a social contract so as to surrender some of their rights to the social politic so as to equally distribute such property amongst the dense population. The social politic, which resulted from the social contract, was thus empowered to manage the resources as well as govern the people failure of which the people would revoke the contract. It is on the premise of this that constitutional orders and governments come into realization.
A constitution thus came in place as a result of the formation of a social politic as it became necessary to stipulate the relationship between the governor and the governed for it would become subject to abuse. A constitution can therefore be defined as a document that issues generic nature that sets out structures, procedures, and powers of the governor as well as rights of the governed.
As such owing to its sue generic nature constitution drafting is not done like any other legislation. It adopts if I may borrow from Harts1 views a highly advanced art as any ambiguities or inconsistencies that determine the successes and failures of a government. Subsequently, in view of the American Constitution, which was drafted in 1987, the framers of the constitution according to Allan2 was with the intention of limiting the governor’s powers and securing the liberty of the governed. As such, the framers took into consideration the separation of the executive, legislative, and judiciary besides securing the liberty of citizens so as to balance the authoritative power on one hand and the liberty of citizens on the other. As such one will realize that the American constitution is divided into sections that portray the intention of the framers of the constitution.
Article 1 vests legislative power in the Congress, House of Representatives, and senate while Art.2 vests executive powers in the president while Art. 111 vests judicial powers in the courts. It is imperative to note that Art VI. And the subsequent articles relating to the supremacy of the constitution as well as the fundamental rights of the citizens. The subsequent section shall look into the role of the judiciary in the interpretation of the law and whether its supremacy is guaranteed in light of the case of U.S V Martin. In McCulloch V. Maryland and Gibbone V. Ogden, the late C.J. Marshall relinquished powers from the state to challenge the validity of any statute established by congress.
According to Marshall’s the enforcement of these laws was absolute so as for the congress to be able to exercise their powers as stipulated in the constitution while affecting the provisions of the constitution. In the latter case, the judge held that the New York statutes that empowered the use of stean-ships in state waterways were null and void in so far as they applied to vessels licensed by the United States. In stating this, Marshall elaborated that any statute of a state that contravened a new act as enacted by Congress in reference to the constitutional provisions and power is null and void. It was thus the procedure that the courts in interpreting the supremacy clause were basing state statute to the underlying policy promulgated within a congress law to gauge its validity. Thus Marshall argued that owing to the delegated powers of the congress under the constitution when it enacts any law that conflicts with such law is null and void.
A look at the obligation of courts in light of interpreting the supremacy clause shall fully be examined. The authority of interpreting constitutional issues vests with the supreme court of the United States Supreme Court. The forgoing was established in the license case wherein ruling that in favor of state laws that required licensing of liquor beverages both internally and externally produced the judge established that the supreme court shall be the final arbiter of determining constitutional issues. This leads us to the examination of judicial supremacy in the interpretation of cases.
In reference to James Madison’s Federalist paper no.45, he establishes that the Judiciary does not have the final conclusive wording on matters relating to the interpretation of the constitution.
Thomas Jefferson concedes with this provision and states that the final arbiter is the people themselves. As to concede with Madison and Jefferson, Alexander Hamilton established that the constitution should be considered as the fundamental rule and therefore preferred over statutes enacted by the congress who are the agents of the people. In Marbury V. Madison 1803 G.C.C. it was established that the court as the final arbiter was supreme. But in Madison’s view, the court usurped the powers of the people and thus was contrary to the intentions of those who drafted the constitution. It was thus established that courts had in their role of interpreting to take note of constitutional provisions which require the protection of basic human rights which revolve around the principle of equality before the law and recognition of the inalienable rights. As such the examination of the supremacy clause of congress over statutes was examined in Fry. v.United States that there are elements of the statute in state legislation and as such the standards to be set out in the interpretation of such laws is through examining permissible and impermissible federal regulation.
This involves an examination of whether such legislation interferes with the functions essential for a separate and independent existence; the commercial clause is not an exception. Thus in the United States, Petitioner V. Alfonse Lopez the respondent arrived in school with a 38 Caliber handgun and the bullets. Upon discovery by school authorities, the respondent was arrested and charged with having firearm possession on school premises contrary to the Gun-Free School zones Act of 1990 as read with the Texas Penal Code Ann – 46.03 (a) (1) the respondent challenged the federal indictment on the grounds that his arrest was unconstitutional as it was beyond the powers by the congress to legislate control over public schools. The district court in examining the provision of the constitution stated that it was within the powers of the congress to regulate the activities of commerce and the business of elementary middle and high school. Upon appeal, the appeal court granted certiorari orders on grounds that Congress had exceeded its constitutional powers. In light of the above decision, the court adopted the concept as envisaged in Gregory V. Ashonoft3 that the constitution gives the federal government limited powers while the remaining numerous indefinite and powers are left to the state government.
They observed that a healthy balance between the state and the federal government should be observed so as to prevent the act of refraining and abuse by the governors. The powers of Congress to regulate commerce was observed in this case by referring to the case of Gibbons V. Ogden4 commerce was seen as a description of commercial intercourse between nations and part of nations, in all its branches, thus it is regulated by rules prescribed to control the intercourse. In view of the court, therefore, commerce power amounted to regulatory powers that prescribe the rule as opposed to lying down of substantive laws. Similarly, in echoing the above provisions, the court held in the case of Kidd V. Person5 it was interpreted that the manufacture of intoxicating liquor fell under the activities of production and manufacturing and as such were within the province of state governance and not federal government under the commerce clause.
A different approach was however held by the courts in the case of Wickard V. Filbum6 the defendants’ allotment of land was established at 11.1 acres and a yield of 20.1 bushels of wheat was expected from such piece of this was pursuant to the introduction of the Agricultural Adjustment Act of 1938 provisions. It is however noteworthy that this legislation was introduced Filburn had planted in 23 acres of land as opposed to what was promulgated and thus harvested more than what was required under the statutory provisions. The court however ruled in favor of the defendant by stating that the intention of the Agricultural Adjustment Act was to stabilize the prices of wheat within the national market and that the power to regulate the price within commercial transactions was bestowed on the federal government pursuant to the previous decision in Gibba case pursuant to Fibrus argument that the excess wheat production was intended for home consumption and not regulations within the commercial provisions.
The court however rejected the earlier distinction between direct and indirect effects on interstate commerce and stated that the excess subsistence crop was, however, within the domain of congressional powers as it exerted substantial economic effects on interstate commerce. He was therefore not outside the federal regulations. This was in tandem with the position held in a previous case NLR B-V. Jones & Laughlin Steel Corp7 where the courts held that the excessive or limited powers of congress are viewed in terms of the scope of such powers. As a result, congress viewed interstate activities that are directly linked to the economic impact of a state to be directly within congress power8
In consideration of the above rules, the place of the judiciary/independence also comes to question. Thus safeguard the independence of the courts, the constitution has enabled the Judiciary to have extensive powers with regard to the interpretation of the law in view of the foregoing the case of Maryland V.Wirtz aptly depicts this position where it was established that the powers to regulate commerce though broad indeed, can be limited through court powers. Similarly, in the case of Garcia V. San, Antonio Metropolitan Transit Authority where the applicant stated that the court had no powers to the limitation on congress commerce powers because all activity relating to commerce is regulated and controlled by the congress. It was established that the courts were independent bodies from the legislature and thus would exercise their powers as independents as stipulated within the constitutional provisions.
References
Bentham, Jeremy (1782) of Laws in General Ed. HWA Hart, 1970 London A throne Press.
Hart, H L A (1983) Essay on Jurisprudence and Philosophy Oxford, Claredon Press.
Letter B, (1997) Rethinking Legal Realisuon Toward a Naturalized Jurisprudence 76 Texas Law Review.
Allan, T.R.S.(2006) Constitutional Justice: A liberal theory of the Rule of Law New York; Oxford University Press.
Anastaplo G. Reflections on constitutional Law Lexington K.Y. University Press of Kentucky (2006).
Wilson P.B. and Masugi K (Eds) (1997). The Supreme Court and American Constitutionalism.
Rowman & littlefield. Griffin M.S. (1998) American Constitutionalism from theory to Politics, Princeton University Press.
Footnotes
- In Essay on Junsprudence and Philosophy(1983).
- (2001) constitutional Justice: A Liberal Theory of the Rule of Law.
- 501 U.S. 452 (1991).
- 9 Wheat 1, 189-190 (1824).
- 128 U.S. 1, 17, 20-22 (188).
- 317 U.S. 11 (1942).
- 301 U.S. 1 (1937).
- Also examine the case of the United States. V. Darby 312 U.S. 100 (1941).