The New Irish Constitution: An Exposition and Some Arguments — John Shaqi
The New Irish Constitution: An Exposition and Some Arguments
History
The New Irish Constitution: An Exposition and Some Arguments
Home rule -- Ireland; Ireland -- Politics and government
We now turn to the possible conflicts of legislation under a federal
constitution. It will be convenient to use the more expressive and
generally understood word “State” for the autonomous components of the
federation. The Canadian term “Province” is prior in time within the
Empire; but it might be misleading to readers unacquainted with Canadian
affairs, as tending to suggest merely administrative functions like those
of a County Council: a body which has many important duties and some
delegated legislative authority, but cannot reasonably be called
autonomous. A federal constitution must assign some legislative powers
exclusively to the federal legislature, and it may reserve or assign
others exclusively to the State legislatures. It may also leave a region
in which the States have power to legislate, but subject to a concurrent
and superior power in the federal authority. This is actually the case in
Canada. Hence questions may arise of a more complicated kind than those
which are open under unitary Home Rule; they may nevertheless be
instructive in simpler cases. The Judicial Committee has deliberately
abstained from laying down any general system of interpretation or any
presumption in favour of extending or limiting the powers of either
Federal or State legislation. It is prepared to take some pains to
reconcile apparently conflicting enactments, but beyond that no precise
method can be formulated. The Court must deal with the problem of each
case on its own merits. “The true nature and character of the legislation
in the particular instance under discussion must always be determined in
order to ascertain the class of subject to which it really belongs.”(79)
Again: “In performing this difficult duty, it will be a wise course for
those on whom it is thrown to decide each case which arises as best they
can, without entering more largely upon an interpretation of the statute
than is necessary for the decision of the particular question in
hand.”(80) It would seem obvious without argument that the courts of
Canada, Australia, or in the future, Ireland, cannot be bound in any case
to give effect to two conflicting enactments of the local and the central
legislative bodies at once, notwithstanding that some of the language used
by the Judicial Committee a few years ago, on an appeal from the Supreme
Court of Victoria, suggests that there is no authority anywhere, short of
an Act of the Imperial Parliament, capable of resolving such a
contradiction.(81)
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