Constitutional Structures–Finnish Idea

As many libertarians are aware, there are a variety of constitutional structures and mechanisms designed to reduce or slow the inevitable growth of the state (on the inevitable growth of the state, see on this Hoppe’s various works on monarchy and democracy, at www.HansHoppe.com). Some of the structures include having a written constitution, horizontal separation of powers (tripartite system of legislature, executive, and judicial) and checks and balances, enumerated powers, a bill of rights, vertical separation of powers (federalism), etc. Others measures could include a requirement to cite the specific grant of authority in any federal statute; jury nullification; explicit recognition of the power of concurrent review (each branch can “veto” laws it things unconstitutional); and right to exit (secession) and emigrate. Supermajority requirements… and the right of the states to overturn Supreme Court decisions are other ideas. Sunset laws (statutes expire unless renewed) and jury trial requirements (combined with double jeopardy), and having a decentralized common-law type system instead of a legislation-based system have also been used or proposed. (I have summarized and discussed various other measures in a couple of articles–Taking the Ninth Amendment Seriously (Conclusion section), and Legislation and the Discovery of Law in a Free Society (p. 175-177).)Recently, in reviewing the draft chapter on Finland’s e-commerce laws for a legal treatise I edit, I came across the following interesting constitutional provision:

The Constitution provides for a possibility of enacting limited exceptions to the Constitution by passing legislation observing the procedure of enactment used for amending the Constitution. In this manner, the legislator can avoid an issue of unconstitutionality arising with regard to legislation that is in its substance contrary to the Constitution. Such laws do not, however, acquire the high normative status of constitutional amendments, but are like ordinary laws; they can be repealed in the general enactment procedure. Under normal conditions, the above procedure is not widely used; indeed, the Parliament has stated the procedure shall be used “only under quite exceptional circumstances and for very pressing reasons”.

What this means is that if the legislature wants to enact a statute that is unconstitutional, instead of having to actually amend the Constitution (with supermajority and other procedural requirements), the legislature can pass the questionable statute with the same supermajority and other procedural requirements otherwise required to amend the Constitution, and that law itself will be constitutional but it will not be viewed as having more fundamental normative implications than it would if it were put in the Constitution itself. Also, unlike amendments to the Constitution, it can be repealed in the same way a normal statute could be. I don’t know if it’s a good idea or not but it is interesting, and would seem to be one way of reducing the mischief of amending the Constitution. OTOH, Congresscritters are mighty creative at finding ways to circumvent the Constitution.

Share

11:42 am on March 10, 2005