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Document Type

Note

Publication Date

Summer 2015

Publication Citation

22 Indiana Journal of Global Legal Studies 703 (2015)

Abstract

Constitutional design has become a novel and globalized legal profession. As such, practitioners in this new field-advisers and consultants of constitutional formation and reformation processesrequire practical and comparative tools to ply their trade. This Note attempts to fill a gap in constitutional design literature and provide such a tool by methodically examining "primacy clauses." By determining whether national or provincial law prevails when the two are in conflict, primacy clauses play an important role in maintaining federal balances of power. Three primacy approaches are found among the world's federal constitutions: national primacy, provincial primacy, and conditional primacy. This Note explores example constitutions for each approach and discusses possible effects each approach may have on power balances. Preliminary examinations suggest that conditional primacy may be more sensitive to the underlying reasons for original divisions of power between government levels; therefore, the conditional approach may be worth further exploration as a more effective and flexible approach to primacy.

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