The Nature of Constitutions and the Doctrine of the Basic Structure of the Constitution

Constitutions are posited, authoritative, paramount obligation-imposing rules according to which all other laws derive their validity. However, this interpretation of what a constitution is hides the normative commitments directing the authoritativeness of a posited constitution. This may be called the conflict between what a constitution ‘is’ and what it ‘ought to be’. One may ask: Is it possible to identify the oughts of constitutions? Would there be some implied normative presuppositions so essential to the nature of a constitution that ignoring or repealing them would render the repealing act unconstitutional? These questions can be framed in terms of the doctrine of the basic structure of the constitution. In this article, I aim to demonstrate that if constitutions have standards so fundamental that certain acts can be contrary to the constitution even when not formally opposing its determinations, the nature of constitutions must be predicated on some normative presuppositions.