Constitutional Law - Supremacy, Delegation and Rights Limitation
The oral exam in constitutional law tests whether you can state a rule precisely, apply it to a short hypothetical, and defend the answer when the examiner changes one fact. Marks come from hierarchy-of-norms reasoning and structured proportionality analysis, not from political commentary.
Core rules
- The constitution is supreme: statutes, regulations, and administrative acts must conform to it. Where the constitution so provides, courts refuse to apply unconstitutional subordinate legislation; abstract review of statutes belongs to the constitutional court.
- Legality: offences, taxes, and restrictions on rights require a statutory basis. A regulation cannot create a penalty or a permit regime broader than its enabling statute.
- Delegation must be express, limited in subject matter, and not sub-delegated; open-ended enabling clauses are unconstitutional.
- Rights may be limited only by law, for a legitimate aim, and proportionately: suitability, necessity (least restrictive means), and balancing.
- Equality requires objective and reasonable justification for distinctions.
Worked example
A minister issues a regulation requiring a permit for any public meeting of more than five people, granting unfettered discretion and setting no deadline for a decision. Step one: is there a statutory basis? If the statute authorises only "maintaining public order", the breadth of the scheme exceeds the delegation. Step two: is assembly restricted? Yes. Step three: is the aim legitimate? Public order, yes. Step four: suitability, yes; necessity, no - the five-person threshold and unlimited discretion are not the least restrictive means. Step five: the absence of a deadline and of reasons makes the regime arbitrary. Conclusion: the regulation is unconstitutional and cannot ground a refusal; the individual refusal is also annulled for lack of legal basis.
Traps
Confusing the unconstitutionality of a norm with the illegality of an individual administrative act; treating a ministerial regulation as a "law" for rights limitation; answering policy rather than doctrine; forgetting to state the remedy (non-application, annulment, compensation).