Constitutional Law

What it does

In 1992, Justice Sandra Day O’Connor summed it up this way in a case called New York v. United States: “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”

What happens when you don’t have one

Taking advantage of Britain not being bound by a constitution, the British Government (albeit a ‘National’ one of a coalition of the two major parties, Labour and Conservative) in the early months of World War II decided to do away with its scheduled general election of 1940, and thus took it upon itself to extend its parliamentary and governing tenure for another five years. Even though WWII was, for lack of a better term, a popular war with the British, (in a 1940 by-election the anti-war candidate got no more than 27% of the vote) it certainly set an extremely dangerous precedent to set in that a national emergency is justification to deny an election and thus withhold a public mandate for five years. Surely a national emergency is one time when the democratic government wants to be sure it has the support of the people.
Even militarist, imperial Japan held an election during WWII, in April 1942, and as it happened, just days after the famous American Doolittle bombing raid on Tokyo.  

An end-run around the Constitution

An ‘end run around the Constitution’ is a football analogy to describe a tactic of questionable legitimacy whereby the executive and / or the legislature manufacture a process whereby an action can be claimed to be legal even though, prima facie, it violates the tenets and text of the constitution.

2nd Amendment to the US Constitution

In 2013 the United States Department of Justice initiated a program, Operation Chokepoint, to restrict American banks in their dealing with certain types of businesses allegedly because those business could be involved in fraudulent activities. As much as some of the businesses certainly were of dubious activities, such as ‘get rich’ products, ‘pay day loans’, escort agencies, lottery sales, home based charities and pawn shops, others were of proven legitimate standing such as ammunition and firearm sales. It became apparent that there was a political motive to include such businesses so as to limit the ownership and use of said products otherwise protected by America’s second amendment. The program was ultimately disbanded after an investigation by the U.S. House of Representatives Committee on Oversight and Government Reform.

Subcommittee chair Sean P. Duffy declared, "I fear that activists at the DOJ and the FDIC are abusing their power and authority and are going after legal businesses and, in effect, they are weaponizing government to meet their ideological beliefs."

Section 107 – Residual powers to the Australian States

Section 51 of the Australian Constitution lists the 39 finite powers granted to the central federal government, all others such as law and order, education, the environment etc, belonging with the states.

 However, in the 1983 Tasmanian Dam Case, the Commonwealth claimed that any treaty signed with an external entity (such as the UN World Heritage), even if in regard to the environment, should be legal because S. 51(xxix) allowed the Commonwealth to engage in “external affairs”. Despite that one would think the obvious meaning of 51(xxix) was to allow the Commonwealth to engage in external affairs only in its authorised fields of authority such as defence, immigration or trade, etc, the  High Court of Australia accepted the argument, and ruling against the state of Tasmania and thus extending the powers of the Commonwealth.


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