Federal State and Constitutional Control: An Overview
Federal State
Definition
A federal state is a union of states, each with its own constitution, submitting to a central authority (Federal Power) while retaining significant autonomy.
Power Dynamics
Federal power is the central authority, while state power is the residual power retained by individual states.
The federal state appears as a single entity externally but operates based on two internal principles:
- Autonomy: Each state possesses its own constitution and legislative, administrative, and judicial powers.
- Participation: State realities are considered in the exercise of federal power.
Several possibilities exist for dividing powers between federal and state levels:
- Listing federal powers, with all others belonging to states.
- Listing state powers, with all others belonging to the federal government.
- Creating two lists: one for state powers and one for federal powers. A residual clause in the Constitution determines responsibility for unlisted powers.
- Creating three lists: federal powers, state powers, and shared powers. A residual clause is also necessary here.
A crucial element in any power distribution system is a clause specifying the prevailing law in cases of conflict.
Fuzzy Control of Constitutionality
:
Begins to establish from the nineteenth century and is characterized by the following features:
Is called fuzzy logic because it is exercised by any judge or court.
· It occurs when a court is acting in a particular case and presents a potential conflict between the Constitution and an ordinary.
Plaintiffs and defendants are necessary to conduct the proceedings, and is one of the parties that the judge warned of the possible contradiction between the Constitution and the ordinary rule, he asks the judge to apply the Constitution. For this reason, in addition occur in a particular case is used as a defense.
All persons are entitled to initiate a specific control of constitutionality (there is a standing open.)
• The court concludes that there is or there is contradiction between the Constitution and the rule. If not, the rule applies, but if so there is no rule applies because it is as if it never existed (ex tunc effect.)
· But if all this takes place in connection with a case relates only to that case, ie, has value only inter partes. The rule does not apply in this case but still within the legal system.
But in the system of common law courts and judges come to find the dcho applicable to solutions that have been given previous similar cases (search above). Therefore, although the sentences relate only to the specific case raised and has value only inter partes effects can indirectly extend to similar cases.
This may pose a problem since we have the possibility of conflicting precedents. But the Anglo-Saxon judicial system is a hierarchical system and there are higher courts, culminating in the Supreme Court. That principle applies stare decisis (to abide by what has already been established). Therefore, when the Supreme Court ruling on a case of unconstitutional, all courts and tribunals must conform to what is already established and will no longer apply.
But the principle of stare decisis binds the lower courts, but not the Supreme Court. In fact there has been no expulsion of the rule of law and may again be applied.