Re: Constitutional Challenge to (C) Code

Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On 1 Apr 1998, Denis Borges Barbosa <denisbarbosa[_at_]bbs.unikey.com.br> wrote:
> >
> > I know that this theme is more adequate to a Constitutional Law list
> > than this one, but I wonder why you must have a case and controversy
> > to discuss constitutionality issues.
>
> It's not just for constitutional issues. It's a requirement for federal
> subject matter jurisdiction in any federal case, constitutional or not.
>
> It comes from the language in Article III, Section 2 of the U.S.
> Constitution, which outlines the jurisdiction of the federal courts and
> limits it to cases and controversies.
>
> The idea is that you don't want the courts to issue advisory opinions on
> the law. You only want them issuing opinions when there is a real case
> with real parties advocating their real positions. That's the essence
> of what the judicial power is. An advisory opinion is essentially
> legislation.

The impression from a Roman Law country is that the Anglo Saxon world is one where you have, besides statutory prescription, also judge-made law. I would think that, absent the authority of precedent, advisory opinions are exactly advisements - intellectual opinions on what the law is. In Brazil also, a judicial decision is passed on a case or controversy - but it creates no cogent precedent. A proposed Constitutional amendment purports to create such effect on chosen opinions of the higher courts, but the idea is being resisted as too Anglo Saxon for our traditions.

I was discussing why a "case or controversy" should be required when the controversy is exactly the conflict of the Constitution and a lower statute. In our law, in a "direct unconstitutionality action" the judgement is passed on the conflict, and is not advisory at all - it solves the conflict by quashing the infringing law. In a case or controversy context (called an incident constitutionality action) a court also can declare the law unconstitutional, but the effects of such declaration are restricted to the case itself, except if the Senate suspends the infringing law on the basis of the decision.

The issue in discussion is: why you have to concoct a case - an artificially and costly one at that - to obtain such remedy? The conflict itself between Constitution and lower statute isn't sufficient real and actual to deserve Judicial solution?

Denis Borges Barbosa - Rio de Janeiro.
<denisbarbosa[_at_]BBS.unikey.com.br> Received on Mon Apr 06 1998 - 15:09:58 GMT