THE AUTHORITY FOR CONSTITUTIONAL INTERPRETATION AND THE JURIDICAL DOCTRINE

            The question, as well the debate of, who have the authority to interpret the Constitution, in other to have effects on government, is as old as the birth of Constitutional theory, and the principle of separation of power.

 The author argument, in favour of contemporary practice, will draw relevant reference, from the American Jurisprudence, accompanied with famous legal assertions, acknowledging her core-strength for Constitutional law theory, within the legal realm, though a former colony of the British Empire, with England having the progeny right, to the Common law doctrine.

The author subscribe to the debate, that each branch of government, have the authority to interpret the constitutional provision, in it orbit of operations, having regard to the essence that, all elected Office-holders, takes an oath to uphold the Constitution.

And furthermore, acknowledge the facts that, Constitutional interpretation, has it Political and administrative doctrine, as well, the Economic and policy doctrine, which are unique of it purpose, as the Marshall Court in declaration to Marbury remedy stated, and shall quote as follows;

“ Where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases, in which the Executive possesses constitution or legal discretion, nothing can be mere perfectly clear, than that their acts are only politically examinable.”

 However, the Chief Justice John Marshall, went further to dissent, and I quote,

“The Constitution imposes limits on government powers, and that these limits are meaningless, unless subject to Judicial enforcement.”

Thou, such an assertion has been the axiomatic of Juridical doctrine, in upholding the rule of law and Justice, as a scope of Constitutional Interpretation, for Judges.

Thereby, makes the Judicial Institution to be solely, and constitutionally empowered, to resolve legal disagreement or controversies, as affirmed in the famous declaration of the Marshall Court, of Marbury v. Madison (1803), and I quote,

"It is emphatically the province, and duty of the Judicial department, to say what the Law is".

The above statement of quote, as a legal maxim, from the verdict of the Marshall Court, governs the authority for ‘Judicial Review’ in addressing legal controversies, and has been a working expansion theory of the American Court, after their succession from the British Imperial rule, as argued by Dudley O. McGovney (1877-1947). ‘Judicial Review’ as a doctrine, was birth as a dissenting opinion from Sir. Edward Coke, the Chief Justice, of the Court of Common pleas of England, and affirmed by the Court, during the Judgement declaration of Dr. Bonham’s case, in the year (1610). Which, I quote an abstract section of the verdict,

“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”.

Thou, there is enormous expectations on modern Court system, under sophisticated political regimes, to know, ‘when’ and ‘how’ to negotiate their path, in upholding the sacrosanct of the Court, as well the sanctity and reputation of it duty, and mandate to the law. For her Ministry, is to strictly administer, and uphold the doctrine of the Rule of law, and Justice, nothing less or more, hence, the wisdom to apply Judiciability principle, as a discretionary doctrine, to decline review, where prudence counsels Judicial avoidance, is the cornerstone of  Judicial power, and enforceable authority in the law.

  

[REFERENCE]

English cases on Constitutional law, 8 co. rep. 114a, 118a (1610).

Marbury vs. Madison, 5 U.S at 176 (1803).

Marbury vs. Madison, 5 U.S at 177 (1803).

McGovney, O. D., British origin of Judicial Review of Legislation. University of Pennsylvania Law Review, Vol. 93, Issue No. 2 (1944).

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†Emmanuel Tweneboah Senzu, professor of Constitutional Law and Economic Criminology, J. Reuben Clark Law School, Provo, Utah, USA. A Cross-Departmental fellow, University of Ghana, and the Central University Faculty of Law. Africa.