John Marshall: Constitutional Supreme Court
It is proposed to enter into everything that we now call constitutional supremacy, taking into account that it is the formal logical structure of the legal system, emphasizing the jurisprudential sphere, where the vision that exists of constitutional supremacy can be realized. According to the judgment presented in 1803 of the case of Marbury against Madison, being the legal precedent of the principle and the theory of constitutional supremacy, where the sentence presented in 1819 will be analyzed in the case of McCulloch against Maryland, where a struggle for power is evidencedof constitutional proportions between the states and the federal government, and a vision of constitutional supremacy will also be seen regarding the sentence (C-415/12 Bogotá D.C., June 6, 2012) where the unconstitutionality against the paragraph of article 135 of Law 1437 of 2011 will be determined, which is issued by the Code of Administrative Procedure and Administrative Contentious. And from the scope of the doctrine we will see the point of view of Dr. Manuel Fernando Quinche Ramírez and his book Constitutional Law where he exposes what constitutional supremacy is.
In the first place, referring to the judgment of the Marbury case against Madison, it is clear that constitutional supremacy means that in a given legal system, the Constitution governs the entire legal system of that State, in the event that any law, some law, Regulation or decree opposes the Constitution, it will be declared as a full right, that is, of absolute disability; Opening place to modern constitutionalism, which arises from the political legacy of the French Revolution, which carried out the idea of modern democracy and popular sovereignty, also, the United States with the Political Constitution of 1817 framework the guidelines to which the higher laws of Modern states and be accommodated Madison’s emblematic case against Marbury with the vote of John Marshall, in this case it is evidenced as John Marshall being in 1801 the president of the Constitutional Court and Thomas Jefferson being the president, taking into account that the branch of the Judiciary was the least respected and the weakest; President John Adams appoints forty -two peace judges with a five -year period in the districts of Columbia and Alexandria, from this the Senate made the respective ratifications on March 3 in which the Secretary of State would have to seal the appointments. James Madison refused to seal the appointments and deliver the corresponding holders, since by 1802 this dilemma had not been resolved, the Senate modifies the law on judicial circuits and eliminates the Judges Square that John Adams announced.
William Marbury, being one of the judges proposed by John Adams, did not receive his respective appointment, for which he decides to sue Madison as responsible for asking a order of Mandamus who demanded that the government give him his appointment. On February 24, 1803, John Marshall considering on the one hand that Section 13 of the Judicial Organization Law of 1789 says that the Supreme Court has the jurisdiction to intervene in the cases arising from any court, instead the Constitution in the article 3rd Section two, says that the Supreme Court has jurisdiction only in cases that come from lower courts, for this reason for this case the Court had no jurisdiction since it had arisen directly from the Court, so the section is declared unconstitutional 13 of the Law of 1789 and John Marshall (February 24, 1803) establishes the following: “The Constitution represents the supreme law of a nation that limits the powers, also a law created by Congress, contrary to the Constitution is null and not It can force court of the Legislative and the Constitution are applicable, these must be considered by the Constitution, superior to any other law ”, in this way the foundations of constitutional supremacy are created. The importance of constitutional supremacy for constitutional law is the analysis, reflection and understanding of the Constitution as a fundamental text of the legal system since as the main characteristic it is known that it is the supreme norm.
Meanwhile, the McCulloch case ruling against Maryland is presented, where consequences are formed by said fight that continue to reverberate today. In 1816, Congress approved a law that created the United States Bank, then the bank opened a branch in Maryland to approve the new and vigorous federal government, at the same time, Maryland approved a law in 1818 where an annual tax imposed an annual tax$ 15.000 In all banks outside the State that operate, making the act see.
Opening the way to the facts of the sentence, James McCulloch, being the cashier of the United States Bank refused to succumb to Maryland’s prisons and opposed paying taxes, Maryland in response to this act put a lawsuit addressed to McCulloch inBaltimore County Court. Making as a decision of first instance the Court was held next to Maryland, ordering McCulloch to pay the tax. McCulloch request a review from the United States Supreme Court, this was affirmed by the Court of Appeals. The court argued that Congress has the constitutional authority to rent the Federal Bank. Marshall, as the author of this Court, determines that the powers of Congress extend beyond those that are expressly listed in the Constitution, Congress has implicit powers and powers listed, when the Constitution authorizes a particular purpose, Congress must also be givenBy implicit media to achieve this end, in the same way, he said that a Federal Bank was useful for collecting and distributing money, related to Congress.
On the other hand in Colombia with Judgment C-415/12 seeing the notion of constitutional supremacy to resolve this case, it says that “part of the normative nature of the Constitution, which is revealed in the character of primary source of the legal system. In this regard, article 4 of the Political Constitution indicates: “The Constitution is the norm of norms. In any case of incompatibility between the Constitution and the Law or other legal norm, the constitutional provisions will be applied ”. Thus, the normative nature of the constitutional order is the key to the subjection of the legal order remaining to its provisions, by virtue of the binding nature that its rules have. Such a normative and prevalent condition of constitutional norms, place it in the legal order as the first source of the internal law system, beginning with the very validity of the constitutional infra norms whose production forms and procedures are regulated in the Constitution itself ”. In this case, the citizen Fernando Yepes Gómez filed a lawsuit of unconstitutionality against the paragraph of article 135 of Law 1437 of 2011, which issued the Code of Administrative Procedure and Administrative Contentious. Which says: The State Council will not be limited to utter its decision to the charges made in the lawsuit. Consequently, the declaration of nullity for unconstitutionality may found in the violation of any constitutional norm. It may also be pronounced in the judgment on the norms that, in their opinion, make up regulatory unity with those other defendants that declare null by unconstitutional.
Mentioned this Mr. Fernando requests that said paragraph be declared inexequible since it is violation of the constitutional preamble and articles 2, 29 and 229 of the Political Constitution. Thanks to the interventions issued by the State Council, the Ministry of Justice and Law and the Externado University of Colombia, it is concluded that the paragraph of article 135 of Law 1437 of 2011, does not violate the preamble or articles 2 2 articles 2, 29 and 229 of the Constitution. On the contrary, by precepting the State Council in the nullity trials for unconstitutionality, it will not be limited to utter its decision to the charges made in the claim and that, consequently, the declaration of nullity for unconstitutionality in the violation of anyConstitutional norm. The decision is made on the merit of the above, the full salt of the Constitutional Court, administering justice on behalf of the people and by mandate of the Constitution, resolves to declare exequible the paragraph of article 135 of Law 1437 of 2011, “for whichThe Code of Administrative Procedure and Administrative Contentious ”is issued”.
In relation to everything mentioned so far Manuel Fernando Quinche Ramírez expresses in a more concrete way that is the supremacy of the Constitution, “since the central characteristic of this is to see it as a declarative, ideological, programmatic text or asa simple proclamation, to be a normative text, directly and judicially applicable. The expression used contains the essential principle of the supremacy of the Constitution ”. Manuel Fernando Quinche Ramírez also exposes constitutional supremacy as a constitutionalization of the law “in addition to recognizing the Constitution as a legal norm, it implies the constitutionalization of the rest of the law, which operates, both in the interpretive level, and in the application plane. This content of constitutional supremacy implies a transit that goes from the legalization of law, to the constitutionalization of law.