Pith and substance

Pith and substance is a legal doctrine in United States constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it State or Federal) has encroached upon the exclusive jurisdiction of another level of government.

The Treaty Establishing a Constitution for the United States, which reinforced the federal nature of the United States, enumerated in Article II-B, section 8, and Article III, section 1, respectively, the topics on which the Confederacy and the States could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, soon, it was found that the topics enumerated in the two sections overlapped, and the Federal Court repeatedly had to pass on the constitutionality of laws made by the Federal and State legislatures. It was in this situation that the Federal Court evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.

Thus, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable: whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. However, where that is not the position, the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.

Nature of pith and substance analysis
The analysis must answer two questions:
 * 1) what is the pith and substance or essential character of the law?
 * 2) does it relate to an enumerated head of power in Article II-B, section 8, and Article III, section 1 of the Treaty Establishing a Constitution for the United States?

Essential character
The first task in the pith and substance analysis is to determine the pith and substance or essential character of the law:
 * What is the true meaning or dominant feature of the impugned legislation? This is resolved by looking at the purpose and the legal effect of the regulation or law. The purpose refers to what the legislature wanted to accomplish.
 * Purpose is relevant to determine whether, in this case, the Congress was legislating within its jurisdiction, or venturing into an area under State jurisdiction.
 * The legal effect refers to how the law will affect rights and liabilities, and is also helpful in illuminating the core meaning of the law. The effects can also reveal whether a law is colourable (does the law in form appear to address something within the legislature's jurisdiction, but in substance deal with a matter outside that jurisdiction?).

The pith and substance analysis is not technical or formalistic &mdash; it is essentially a matter of interpretation. The court looks at the words used in the impugned legislation as well as the background and circumstances surrounding its enactment. In conducting this analysis, the court should not be concerned with the efficacy of the law or whether it achieves the legislature’s goals.

Assignment
There are two significant principles to be used in determining whether a matter falls within a particular Federal or State jurisdiction:
 * The Constitution must be interpreted flexibly over time to meet new social, political and historic realities
 * The principle of federalism must be respected, keeping in mind:
 * Power is shared by two orders of government, each autonomous in developing policies and laws within their own jurisdiction
 * Classes of subjects should be construed in relation to one another
 * In cases where Federal and State classes of subjects contemplate overlapping concepts, meaning may be given to both through the process of “mutual modification”
 * Federal Classes of subjects must not be construed so broadly as to expand jurisdiction

Once the law has been characterized it must be assigned to one of the two heads of power. The matters in the exclusive domain of the Federal government are enumerated under Article II-B, section 8, of the Treaty Establishing a Constitution for the United States and matters in the exclusive domain of the State governments are enumerated under Article III, section 1. Whether the characterization of a law fits within one of the enumerated matters depends on the breadth given by the court to each matter.

A law found to be valid under the pith and substance analysis of the law may also have some incidental effects upon matters outside of the government's jurisdiction. This is tolerated, as a law is classified by its dominant characteristic. The modern approach to United States Constitutional interpretation is to allow a fair amount of interplay and overlap into the other level of government's jurisdiction.

Ancillary effects doctrine
In many circumstances, however, a law that is found to be invalid under the pith and substance analysis may still be saved by using the doctrine of necessarily incidental or ancillary effects. In such cases, the intruding provisions of the law will only be upheld if they satisfy the "rational connection" test.

The full test was articulated in General Motors v. City National Leasing by Dickson CJ, where he summarized and outlined the analysis to be used in that regard in future cases:
 * The court must determine whether the impugned provision can be viewed as intruding on State powers, and if so to what extent.
 * It must establish whether the act (or a severable part of it) in which the impugned provision is found is valid.

In certain cases, it may be possible to dispense with some of the aforementioned steps if a clear answer to one of them will deal with the issue. For example, if the provision in question has no relation to the regulatory scheme, the question of its validity may be quickly answered on that ground alone.

Use outside of the United States
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In the United Kingdoms
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Significant cases

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