The Foundations and Traditions of Constitutional Amendment

by Richard Albert, Xenophon Contiades, Alkmene Fotiadou

Overview

There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change.

This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written.

This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.

Product Details

ISBN-13:	9781509934638
Publisher:	Bloomsbury Academic
Publication date:	11/28/2019
Series:	Hart Studies in Comparative Public Law
Pages:	416
Product dimensions:	6.69(w) x 9.61(h) x 0.85(d)

About the Author

Richard Albert has been appointed Professor of Law at Boston College Law School and visiting professor at the University of Toronto, Externado University of Colombia, the Interdisciplinary Center (Herzliya) and Yale University.
Xenophon Contiades is Professor of Public Law, Panteion University of Social and Political Sciences (Athens, Greece) and Managing Director of the Centre for European Constitutional Law.
Alkmene Fotiadou is Research Associate at the Centre for European Constitutional Law.

Table of Contents

Acknowledgements v

Notes on Contributors xv

Introduction: The State of the Art in Constitutional Amendment Richard Albert 1

I Defining the Field 3

II The Architecture of Constitutional Amendment Rules 4

A Unamendability 7

B The Operation of Constitutional Amendment 8

C Three Challenges in the Study of Constitutional Change 11

III Amendment as Constitution 12

A Perspectives on Constitutional Amendment 14

B The Future of Constitutional Amendment 19

Part I The Foundations of Constitutional Amendment

1 Amendment Power, Constituent Power, and Popular Sovereignty: Linking Unamendability and Amendment Procedures Yaniv Roznai 23

I Introduction 24

II Unamendability and Constituent Power 24

A A Three-Track Democracy in a Nutshell 24

B Primary Constituent Power and Popular Sovereignty 26

III The Constitutionalisation of Primary Constituent Power 31

A The Fallacy of Prescribed Constitution-Making Procedures 31

B We The 'Limited' People? 33

IV The Spectrum of Constitutional Amendment Powers 37

A Demanding and Facile Amendment Powers 37

B Linking Amendment Procedure and Unamendability 41

C The Spectrum of Amendment Powers and Judicial Review of Amendments 46

V Conclusion 48

2 Constitutional Theory and Cognitive Estrangement: Beyond Revolutions, Amendments and Constitutional Moments Zoran Oklopcic 51

I Introduction: The Person of 'The People' and A Three-Fold Cognitive Estrangement 51

II Beyond 'The People': New Tropes, Old Anxieties 54

III Three Forms of Estrangement-prevention: Holmes, Pettit, Dworkin 56

IV Tertium Datur: Mapping Constitutional Change Between the Revolution and the Amendment 59

V Towards a Different Familiarity: 'The People', The Paradox and The Sacrifice 69

3 Constraints on Constitutional Amendment Powers Oran Doyle 73

I Introduction 73

II A Doctrine of Unconstitutional Constitutional Amendments 74

A Unconstitutional Amendments: Positive, Moral and Conceptual Claims 74

B Morally Unconstitutional Constitutional Amendments 75

C Conceptually Unconstitutional Constitutional Amendments 77

D A Problematic Rubric 80

III Constraint and Powers of Constitutional Change 81

IV The Types of Constraint on Constitutional Amendment Powers 83

A Process or Content 83

B Rule or Standard 84

C Legislator or Court 84

D Values Served by Constraint: Foundational, Majoritarian, or Counter-Majoritarian 86

V Distribution of Power and the Justification of Constraint 87

VI Justification of Constraints on Constitutional Amendment Powers 89

A Parameters of Justification 89

B Illustrative Schema of Constraints 89

C Contextual Factors 91

D Majoritarian Constraints 92

E Foundational Constraints 94

F Counter-Majoritarian Constraints 94

VII Conclusion 95

4 Comment on Doyle's Constraints on Constitutional Amendment Powers Mark Tushnet 97

5 Constituting the Amendment Power: A Framework for Comparative Amendment Law Thomaz Pereira 105

I Introduction 105

A Sievès' Two Different Problems 107

i Constituting the Constituent Power 108

ii Limiting the Constituent Power 109

iii Lessons from Failure and Success 111

B Constituting the Amendment Power 113

i People Who? 115

ii People When? 117

a 'The People' has Left the House 117

b 'We' are Always Open 118

c Follow the Yellow Brick Road 119

II Conclusion 120

6 Sieyès: The Spirit of Constitutional Democracy? Luisa Fernanda Garcia Lopez 121

I Introduction 121

II Towards a Representative Democracy 124

A From the Tiers État to the National Constituent Assembly 125

B From Citizenship to Constituent Power: The Foundation of Political Representation 127

III Towards a Constitutional Democracy 129

A The Sovereign People 130

B The Sovereign Constitution 131

IV Conclusion 133

7 Revolutionary Reform in Venezuela: Electoral Rules and Historical Narratives in the Creation of the 1999 Constitution Joshua Braver 137

I Introduction 137

II Carl Schmitt's Unfortunate Victory over Hannah Arendt in the Analysis of Popular Constitution-Making 139

III Hannah Arendt's Revolutionary Reform 141

A The Dangerous Freedom of the People 141

B Renewal and Revolutionary Reform 143

C Extrapolating from Arendt: Unconventional Adaptation 144

IV Hugo Chavez's Radical and Original Constituent Power 145

V The Turning Point: The Electoral Rules for the Constituent Assembly 148

A The Difficulty of Fighting Against the Referendum 149

B Ex-Ante Control of the Constituent Assembly through Electoral Rules 150

VI Radical Breaks and Exclusionary Mandates 151

A Liberal Democracy's Potential for Revolutionary Reform 152

B First Past the Post: The Revolutionary Mandate to Destroy the Past 153

C Proportional Representation: Inclusion and the Pluralised People 154

VII Conclusion 156

8 'Revolutionary Reform' and the Seduction of Constitutionalism Juliano Zaiden Benvindo 157

I A Revolution in Crisis: Braver's Narrative of the Creation of the 1999 Constitution in Venezuela 157

II The Dilemma of the Sovereignty of the People 162

III The Seduction of Constitutionalism: When Constitutionalism Faces the Contingencies of Social Life 168

IV Conclusion 172

Part II The Traditions of Constitutional Amendment

9 Constitutional Sunrise Sofia Ranchordás 177

I Introduction 177

II Sunrise Clauses 180

A Automatic and Contingent Sunrise Clauses 182

i Automatic Sunrise Clauses 182

ii Contingent Sunrise Clauses 183

B Sunrise Clauses and the Use of Conditions 184

C Sunrise Clauses and By-Laws 186

III Contingent Constitutional Change Between Retrospective and Foresight 187

A Sunset Clauses 189

B Sunrise Clauses and Aspirational Constitutionalism 190

IV The Constitutionality of Sunrise Clauses 191

A Riordan v An Taoiseack 192

B Sunrise Clauses and the Constituent Power 194

V Conclusion 196

10 Constitutional Change and Interest Group Politics: Ireland's Children's Rights Referendum Oran Doyle David Kenny 199

I Introduction 199

II Referendums and Constitutional Change 201

III Political Cleavages and Narratives for Change 202

IV Children's Rights: From Lawyers to Interest Groups and Back Again 204

V The Referendum Campaign 211

VI Conclusion 216

11 Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution Xenophon Contiades Alkmene Fotiadou 219

I Introduction: Does the Frequency of Amendment Relate to Constitutional Quality? 219

II Constitutional Length and the Economy: An Unexpected Relationship 220

A Using Metrics to Evaluate the Quality of Constitutions 220

B Persuasion through Numbers: Dubious Explanations 223

III Poor Countries, Lengthy Constitutions and High Amendment Rates: In Search of an Explicable Correlation 228

A Correlating History and Political Culture to Constitutional Length 228

B When do Constitutions Change? 232

C The Greek Example: Testing the Neutrality Amendment Proposals for a Shorter Constitution 234

IV Is There Such Thing as the 'Ideal Constitution'? 236

V Conclusion 239

12 Comment on Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution James E Fleming 241

I Introduction; Does the Frequency of Amendment Relate to Constitutional Quality? 241

II The Notion of a Bad Constitution 242

III Criteria for a Good Constitution 245

IV The Purposes of Amendment 248

V The Fallacy of Confusing Correlation with Causation 249

VI Conclusion 251

13 Constituting 'the People': The Paradoxical Place of the Formal Amendment Procedure in Australian Constitutionalism Lael K Weis 253

I Introduction 253

A Australia's Amendment Procedure in Context 255

B The Place of the Formal Amendment Procedure in Australian Constitutionalism 258

i Section 128 as the locus of Australian Popular Sovereignty 258

ii Section 128 as the Site of Ordinary Politics 262

II Evaluation and Conclusion 268

14 Hard Amendment Cases in Canada Kate Glover 273

I Part V and Hard Amendment Cases 275

A The Logic of Part V 275

B Hard Amendment Cases 277

II Principles of Application 278

A Supporting Characteristics and Qualitative Assessments 279

i The Principle 279

ii The Principle in Action 279

iii The Case of Supreme Court Reform 281

B Enhancements and Alterations of Architectural Interests 283

i The Principle 283

ii The Principle in Action 283

III The Case of Mandatory Bilingualism at the Court 285

IV Conclusion 291

15 Formal Amendment Rules and Constitutional Endurance: The Strange Case of the Commonwealth Caribbean Derek O'Brien 293

I Introduction 293

II The Rationale for the Inclusion of Formal Amendment Rules in Commonwealth Caribbean Constitutions 295

A Special Legislative Majorities 295

B Referendum Requirements 297

C Constitution-Making in the Eastern Caribbean 298

III Post-Independence Constitutional Reform and Amendment Culture 301

A Special Legislative Majorities 302

B Referendums 302

i Guyana 303

ii Nevis 304

iii The Bahamas 305

iv St Vincent and the Grenadines 306

C Amendment Culture 307

IV Conclusion 312

16 The French People's Role in Amending the Constitution: A French Constitutional Analysis from a Pure Legal Perspective Jean-Philippe Derosier 315

I The Position of the People: Fundamental and Absolute, in Appearance 317

A The People's Fundamental Desire for the Present Constitution 317

B The People's Central Role in the Constitution's Amendment Procedure 319

C The People's Absolute will Reflected in the Constitution 320

II The Position of the People: Limited and Relative, in Law 322

A Social People and Legal People 322

B The 1962 Legal Revolution 323

C The Amending Procedure of Article 11 Questioned 325

17 The Implication of Conflation of Normal and 'Constitutional Politics' on Constitutional Change in Africa Duncan Okubasu 327

I Introduction 327

II Decision Making in a Polity 329

III Expression of Normal Politics in Constitutional Politics 331

IV Revisiting Effectiveness and Stability 336

V Constitutional Irrelevance 338

VI Conclusion 340

18 Direct Democracy and Constitutional Change in the US: Institutional Learning from State Laboratories Jurgen Goossens 343

I Introduction 343

II Article V of the US Constitution 344

A The Four Classic Paths to Amendment 344

B Exclusive Reading of Article V 346

C Non-Exclusive Reading of Article V 346

III State Laboratories 350

A Amendment by Proposal of the State Legislature 351

i One or Two Legislative Sessions-Supermajority vs Simple Majority Vote 352

ii Special vs General Election 353

iii Size of Popular Vote 354

B Amendment by Popular Initiative 355

C Constitutional Convention 357

D Constitutional Commission 360

IV Alterations to the Federal Amendment Procedure 361

A Initiative Petitioning 361

B Constitutional Referenda 363

C Simple Majority for Popular Votes 365

V Conclusion 366

VI Attachment: Methods for Constitutional Amendment Provided by the State Constitutions 367

Conclusion: The Emergence of Comparative Constitutional Amendment as a New Discipline: Towards a Paradigm Shift Xenophon Contiades Alkmene Fotiadou 369

I A Paradigm Shift in Comparative Constitutional Change 369

II The Amendability Factor: Understanding Constitutions through their Change 371

III New Taxonomies of Constitutional Change 374

IV Symbolism and Functionality of Formal Amendment Rules 377

V Conscious Constitutional Design: Drafting Amendment Rules 379

VI Legitimacy and Constitutional Change 383

VII Conclusion: Toward a Holistic Conceptualisation of Comparative Constitutional Amendment 387

Index 389