A perspective on suspended declarations of Unconstitutionality
by admin on | 2024-10-07 09:27:12 Last Updated by admin on 2024-10-18 08:40:08
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Introduction
Constitutional scholars have long debated whether the legislature, executive, or judiciary should have the last word on constitutional guardianship. Constitutional guardianship can be understood in two different ways. Firstly, as the protection of the rights enshrined in a written constitution. Secondly, as the ‘protection of a form of social and political ordering’. In the German context, the debate between Hans Kelsen and Carl Schmitt on the Weimar Constitution stands out. Schmitt argued that the executive (president) should have the last word in constitutional guardianship while Kelsen maintained that the courts are natural fits for guarding the constitution.For Schmitt, since the constitution\'s core expresses the people’s self-chosen political identity, authoritative interpretations of basic constitutional principles must be provided by the constituent power or a political authority speaking in its name, not by a court. Schmitt concludes, therefore, that the role of the guardian of the constitution ought to fall to the popularly elected president, or more generally, to...Read more
