Transcript Diapositiva 1

Il controllo diffuso
• Come nasce il Judicial review of legislation negli Stati Uniti?
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Alcuni “precedenti”:
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Bonham’s case (UK – 1610):
in many cases, the common law will control acts of parliament, and
sometimes adjudge them to be utterly void: for when an act of
parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will control it, and adjudge
such act to be void”
Alexander Hamilton, federalist n. 78:
If it be said that the legislative body are themselves the constitutional
judges of their own powers, and that the construction they put upon
them is conclusive upon the other departments, (…)
The interpretation of the laws is the proper and peculiar province of the
courts. A constitution is, in fact, and must be regarded by the judges, as
a fundamental law. (…). If there should happen to be an irreconcilable
variance between the two, that which has the superior obligation and
validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the
people to the intention of their agents
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Marbury v. Madison (1803)
• In questa sentenza la Corte suprema
afferma il controllo di costituzionalità.
• Nella pronuncia, la Corte risponde atre
quesiti:
• 1. C’è un diritto?
• 2. Se c’è un diritto ed è stato violato, c’è
un remedy?
• 3. Il remedy richiesto è quello giusto?
1. C’è un diritto?
• by signing the commission of Mr. Marbury, the
president of the United States appointed him a
justice of peace for the county of Washington in
the district of Columbia;
• the seal of the United States, affixed thereto by
the secretary of state, is conclusive testimony of
the verity of the signature, and of the completion
of the appointment;
• the appointment conferred on him a legal right to
the office for the space of five years.
2. Right and remedy?
• The very essence of civil liberty certainly
consists in the right of every individual to
claim the protection of the laws, whenever
he receives an injury. One of the first
duties of government is to afford that
protection. In Great Britain the king himself
is sued in the respectful form of a petition,
and he never fails to comply with the
judgment of his court.
3. Quel remedy?
• Nella Costituzione si specificano i casi di
original jurisdiction della Corte suprema.
• The authority, therefore, given to the
supreme court (…) to issue writs of
mandamus to public officers, appears not
to be warranted by the constitution; and it
becomes necessary to inquire whether a
jurisdiction, so conferred, can be
exercised.
Le cose sono semplici…
• La Costituzione è al vertice della gerarchia delle fonti,
quindi:
• Between these alternatives there is no middle ground.
The constitution is either a superior, paramount law,
unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and like other acts, is alterable
when the legislature shall please to alter it.
• If the former part of the alternative be true, then a
legislative act contrary to the constitution is not law: if the
latter part be true, then written constitutions are absurd
attempts, on the part of the people, to limit a power in its
own nature illimitable.
• «It is emphatically the province and duty of the
Judicial Department to say what the law is. (…).
• If two laws conflict with each other, the Courts
must decide on the operation of each. So, if a law
be in opposition to the Constitution, if both the law
and the Constitution apply to a particular case, so
that the Court must either decide that case
conformably to the law, disregarding the
Constitution, or conformably to the Constitution,
disregarding the law, the Court must determine
which of these conflicting rules governs the case.
• This is of the very essence of judicial duty. If, then,
the Courts are to regard the Constitution, and the
Constitution is superior to any ordinary act of the
Legislature, the Constitution, and not such
ordinary act, must govern the case to which they
both apply.»