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Limitation on Supreme Court to declare a law unconstitutional

A law cannot be declared unconstitutional by the judiciary unless it violates a specific provision of the Federal Constitution. This article’s goal is to demonstrate the validity and significance of this


A law cannot be declared unconstitutional by the judiciary unless it violates a specific provision of the Federal Constitution. This article’s goal is to demonstrate the validity and significance of this principle. Many lawyers will view a discussion of the topic as superfluous because the judgements seem to have perfectly established the doctrine at issue. However, it was recently refuted in the second edition of his excellent work on constitutional limitations, Judge COOLEY states in the preface that he has made an effort to highlight “that there are on all sides definite limitations which circumscribe the legislative authority independent of the specific restrictions which the people impose by their State Constitutions.[1]

Taxes acceptable for public objectives

It is said very Taxation should only be used for public purposes, or purposes that the community being taxed is interested in achieving. This is such a given that we assume it has never been questioned. A PR legislator once supported a taxation-imposing law on the grounds that it would advance a goal regarded to be in the public interest. However, just as is evident from the principle, its argument that the judiciary should be used as a standard to judge the legality of a legislature conflicts with the idea that the legislature might be ruled void unless there is a particular constitutional provision. The very definition of taxation indicates that it must be done with a purpose and that any attempt to tax an object should not be robbery but rather taxation.  

As a result, it is clearly unlawful to limit the power of the legislature through the use of a word, as was done by the lexicographer who provided the definition. When a legislative act’s validity depends on how a constitutional provision is to be interpreted, the definition of the words used in that provision must be taken into consideration; however, to claim that in any other circumstance, the definition of the words used in that provision can control a legislative act, is to establish a standard of judgment outside of the Constitution.[2]

The Power of the Courts to Declare Laws Unconstitutional: A Discussion Based upon Review of Decisions upon Constitutional Questions Affecting the Workmen’s Compensation Act

Since the establishment of the power of the court to declare a law unconstitutional more than a century ago, the particularly American legal institution of the court’s authority to declare laws unlawful has encountered ferocious hostility. The right is nevertheless frequently contested and brought to the forefront of legal debate at irregular intervals, despite being supposedly strengthened by time to the point where the exercise of power has become impregnable. It will not go away, just like Banquo’s ghost. A lot of the discussion surrounding this issue is based on dubious premises. Many of the criticisms of our courts that are made in relation to the use of this power are demagogic and unworthy of serious thought. [3]

Criminal activity and power abuse

The working class in the United States has a well-founded perception that power is being unfairly used to protect the financial interests of the wealthy and to prevent the working man from improving his standard of living and securing the rights to economic freedom and fair working conditions that should be guaranteed to all people. But this is just an impression, and rational people hardly ever advocate it seriously. However, a lot of the literature in favour of the use of this power is founded on a stubborn commitment to the past and deference to the viewpoints of the nation’s business and industrial interests. It consists solely of restating the governing ideals outlined by the Federalist party 130 years ago, which have been fiercely contested ever since.

Many discussions on the issue take the form of political debate and typically include the speaker’s findings without being backed up by concrete evidence from scientific observation that might be used to verify their veracity. Instead of a comprehensive examination of the facts and the rational inference of conclusions therefrom, political topics are typically determined on the basis of matters of impression. It has occurred to the author to approach the subject from the perspective of the statistician in order to avoid this inclination and maintain the professional basis of this essay.[4]


The Denmark Supreme Court does not issue lengthy legal treatises as its rulings. The important facts and the legislation regulating them are often stated in two regular printed pages, although it is nearly unheard of for a lawyer to have any questions regarding the decision’s meaning or justifications after it has been made. However, in order to understand the complete argument while analysing these rulings, it may be necessary to stray from the case reports. It may therefore be inferred from the opinions themselves and from the debates on the issue that took place before and after the choices that the following arguments served as the main foundation for those conclusions: In the execution of their duties, the three traditional powers of the State operate independently of one another. A fourth power, namely the special authority established with the capacity to revise and alter the constitution, exists in addition to these three conventional powers. [5]

The king is not permitted to alter the constitution

The Constitution cannot be changed by the King, the Rigs Dag, or the Courts. Together, the three of them are unable to accomplish it. The authority over the Constitution of Denmark is intricately arranged. The Rigs Dag must be dissolved and new elections held if a constitutional amendment has passed both houses of the Rigs Dag with the required majority. The question is put to a public vote, and if it receives a majority of the vote, it is authorized by the King and becomes a part of the constitution if both houses of the Rigs Dag once more ratify the amendment with the required majority and in its original form.

The King has no authority to make either statutes or constitutions; the King and the Rigs Dag together have the authority to make statutes but have no authority to make, change or amen Ordinary legislation must be passed according to a specific process outlined in the constitution. Imagine if the executive violated this by enacting as law provisions that had not been approved by the Rigs Dag, one chamber only, or after two readings as opposed to three. Is it conceivable that anyone would protest if a court ruled that such an “Act” was invalid because it violated the constitution? But when the enactment’s substance rather than its form is in question, the fundamental inquiry is: Did the Authority that is authorized by the constitution to make its provisions law issue this Act? There would be no constitution and the legislature would have unlimited power if these two had the power to modify the constitution by designating the amendments as statutes. There is a constitution, nevertheless, and it establishes a distinct and sole authority with control over the constitution. The Supreme Court of Denmark has been careful to emphasize that it has nothing to do with the purposes or politics of Acts coming before it; that it can declare an Act unconstitutional only when it is in fact an amendment to the constitution, and has not been enacted by the proper authority. [6]


As we draw to a close, it is clear that the Supreme Court can only rule a law unconstitutional when a compelling interest justifies it. Otherwise, it cannot do so. The court must analyse these considerations in order to provide a rationale as to why a law cannot exist in society since it is considered void and unconstitutional if it is in conflict with the supreme law.

Author(s) Name: Kashish Agarwala (National Law University in Delhi)


[1]C. A. Kent, ‘The Power of the Judiciary to Declare a Law Unconstitutional’ (1872) 20 (12) U. Pa. L. Rev. 9


[3] Warren H. Pillsbury, ‘The Power of the Courts to Declare Laws Unconstitutional: A Discussion Based upon Review of Decisions upon Constitutional Questions Affecting the Workmen’s Compensation Act’ (1923) 11 (5) California Law Review 35


[5]Axel Teisen, ‘Power to Declare Legislation Unconstitutional in Denmark’ (1924) 10 (11) American Bar Association Journal 3