The Architecture of Constitutional Amendment

2019 ◽  
pp. 175-228
Author(s):  
Richard Albert
Keyword(s):  
Constitutional Amendment ◽  
Single Subject ◽  
Constitutional Change ◽  
Single Track ◽  
Constitutional Amendments ◽  
Deep Dive ◽  
Alternative Design ◽  
Expressive Function ◽  
Important Relationship ◽  
Better Than

Constitutional amendment rules were once very simple in their design. A constitution codified a one-size-fits-all procedure for amendments to any part of the constitution, and that was it. Today, amendment rules are considerably more complex in their design and in the possibilities they offer constitutional designers for structuring their rules of constitutional change. This chapter examines the architecture of constitutional amendment, specifically the options available to constitutional designers to build their own rules of change. This chapter also weighs the strengths and weaknesses of these options and offers some guidance on when one choice may be better than another. This chapter compares single-track and multi-track pathways in constitutional amendment, single-subject and omnibus amendment bills, and procedures for amendment and dismemberment. This chapter also explains why codified unamendability is problematic for democracy and suggests an alternative design that can achieve the expressive function of unamendability while not denying the fundamental right of amendment. This chapter moreover examines the important relationship between time and change, namely how constitutional designers can use and manipulate time in their design of amendment rules. Finally, this chapter explores judicial review of constitutional amendments, beginning first by explaining eight strategies a court can use to invalidate an amendment and then elaborating several alternatives to the judicial invalidation of constitutional amendments. What results is a deep dive into the design of amendment rules. This chapter considers constitutions from around the globe.

Part V State Constitutional Amendment and Revision, 14 Judicial Involvement in State Constitutional Amendment and Revision

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
The State ◽  
Constitutional Amendment ◽  
Single Subject ◽  
Constitutional Change ◽  
Processes Of Change ◽  
Federal Level ◽  
State Constitutions ◽  
State Constitution ◽  
Generally True

This chapter discusses the extensive judicial involvement in litigation considering the substance and procedure of state constitutional amendment and revision. Some processes of state constitutional change can only be utilized, for example, to amend the state constitution but not to revise it. This is generally true for the initiative. Litigation therefore arises over whether an initiated change is a valid amendment or an invalid revision. Also, state constitutions contain a number of procedural requirements and limitations on the processes for their change, such as single-subject and separate-vote requirements. These procedural restrictions are enforced by the courts through litigation. This level of judicial involvement in the processes of state constitutional change is unlike that at the federal level, for change does not occur very often and challenges to the federal processes of change are generally viewed as non-justiciable political questions.

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

2020 ◽  
Vol 14 (1) ◽  
pp. 19-48
Author(s):  
Yaniv Roznai ◽  
Tamar Hostovsky Brandes
Keyword(s):  
Judicial Review ◽  
Constitutional Amendment ◽  
Constitutional Theory ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Ongoing Process ◽  
Gradual Process ◽  
The World ◽  
Formal Procedures ◽  
Constitutional Changes

AbstractThe world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.

Justifications for Initiating a Constitutional Amendment to Establish an Australian Republic: An Empirical Study

2012 ◽  
Vol 40 (1) ◽  
pp. 89-110
Author(s):  
Glenn Patmore
Keyword(s):  
National Identity ◽  
Empirical Study ◽  
Indigenous People ◽  
Political Action ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Public Figures

Under section 128 of the Australian Constitution federal parliamentarians have the power to initiate constitutional amendments. This paper examines the justifications of politicians and public figures for proposing a referendum to introduce an Australian republic. From interviews conducted between 2008 and 2011, three important justifications for proposing change emerged: promoting a new national identity; success in passing a referendum and in re-election; and timeliness. An examination of these justifications raised additional questions, including: what reasons did politicians and public figures think were significant? How did their justifications form and develop? What were the reasons that inspired political action? The reasons for initiation of a referendum for a republic, and recognition of indigenous people in the Australian Constitution are also compared. The paper adds to the literature on formal constitutional change, and also offers a critique of the field.

Part Four Constitutional Change, 11 Constitutional Amendment and the Substitution of the Constitution Doctrine

2017 ◽  
Author(s):  
Espinosa Manuel José Cepeda ◽  
Landau David
Keyword(s):  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Flexible System ◽  
Certain Answers

The 1991 Constitution sets up a relatively flexible system of constitutional change, which can be activated through several different routes. The Constitution has thus been frequently amended since its enactment. The Colombian Constitutional Court has been aggressive in policing the tools of constitutional change. It has been meticulous in ensuring that amendments follow the proper congressional procedures, and in the case of amendments via referendum it has ensured that questions are sufficiently clear and do not bias voters toward certain answers. Most significantly, the Court had developed a substitution of the constitution doctrine, where it has struck down some constitutional amendments on the ground that they replaced core provisions of the existing constitution, rather than merely changing them. This doctrine was most famously used in a case striking down a constitutional amendment that would have allowed the popular president Alvaro Uribe to run for a third straight term.

Constitutional Amendments

2019 ◽  
Author(s):  
Richard Albert
Keyword(s):  
Constitutional Amendment ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Democratic Government ◽  
Legal Constraint ◽  
The World

Constitutional Amendments: Making, Breaking, and Changing Constitutions is both a roadmap for navigating the intellectual universe of constitutional amendment and a blueprint for building and improving the rules of constitutional change. Drawing from dozens of constitutions in every region of the world, this book blends theory with practice to answer two all-important questions: What is an amendment and how should constitutional designers structure the procedures of constitutional change? The first matters now more than ever. Reformers are exploiting the rules of constitutional amendment, testing the limits of legal constraint, undermining the norms of democratic government, and flouting the constitution as written to create entirely new constitutions that masquerade as ordinary amendments. The second question is central to the performance and endurance of constitutions. Constitutional designers today have virtually no resources to guide them in constructing the rules of amendment, and scholars do not have a clear portrait of the significance of amendment rules in the project of constitutionalism. Constitutional Amendments: Making, Breaking, and Changing Constitutions shows that no part of a constitution is more important than the procedures we use change it. Amendment rules open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths. The codification of amendment rules often at the end of the text proves that last is not always least.

scholarly journals Non-Constitutional Measures as an Alternative to Constitutional Amendment: Post Meech Lake and Charlottetown

Federalism-E ◽  
1969 ◽  
Vol 9 (1) ◽  
pp. 17-32
Author(s):  
Jennifer Chisholm
Keyword(s):  
Constitutional Amendment ◽  
Constitutional Change ◽  
Canadian History ◽  
Constitutional Amendments ◽  
Significant Events ◽  
Charlottetown Accord ◽  
High Politics

The period spanning from the early 1980s to 1992 has been referred to as the era of constitutional federalism in Canada. One of the most significant events in Canadian history occurred on April 17, 1982, the patriation of the Canadian Constitution. Quebec did not sign the Constitution and for the following decade the country was dominated by the “high politics” of constitutional change. The Meech Lake Accord and the Charlottetown Accord respectively attempted to accommodate Quebec’s conditions for signing the document, however both failed. This paper describes the process and content of both Accords and the factors that led to their failure. It argues that Canada is better off due to the failure of these two proposed constitutional amendments. It also argues that subsequent non-constitutional measures introduced in the 1990s and 2000s have addressed many of the mega-constitutional concerns that these two accords attempted to tackle. The paper discusses some of the issues included in both Accords that have since been addressed through non-constitutional means, including: the recognition of Quebec as a distinct society; the federal government’s spending power; Aboriginal selfgovernment; a veto for Quebec on certain constitutional amendments; and Senate reform.[...]

scholarly journals Irlanda : reforma constitucional versus convención constitucional : análisis del déjà vu de Irlanda desde la perspectiva de la reforma constituciónal española

2012 ◽  
pp. 411
Author(s):  
Esther Villadangos Seijas
Keyword(s):  
Sovereign Debt ◽  
Political System ◽  
Debt Crisis ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Constitutional Convention ◽  
The Public ◽  
Doing Business ◽  
Regulatory Systems ◽  
Full Force

El presente artículo se centra en el estudio de la gestación de la crisis económica en Irlanda y en el análisis de las respuestas constitucionales a la misma. En primer lugar se analiza el papel de la reforma constitucional, estudiando el mecanismo diseñado en los arts. 46 y 47 de la Constitución. El carácter preceptivo del referéndum ha reforzado la implicación social en un total de 23 reformas aprobadas hasta la fecha. De especial trascendencia, como reacciones constitucionales ante el contexto de crisis, podemos destacar la reforma de 2011 relativa a la reducción del salario de los jueces y la afrontada en 2012, como consecuencia de la ratificación del Tratado de Estabilidad. Un segundo contenido de este trabajo expone una «relativa» novedad en el panorama constitucional, la de la Convención Constitucional. Concebida como un órgano deliberativo y participativo, estamos ante un mecanismo que trata de paliar una común demanda de las democracias actuales de fomentar la participación social como complemento a las limitaciones de los cauces parlamentarios tradicionales, subyugados a demasiadas lealtades, partidistas, endogámicas que impiden el ejercicio de sus funcione de canalización de la voluntad popular en el seguimiento de los asuntos públicos.This article focusses on Irish answers to the economic crisis. The full force of the sovereign debt crisis has been affected Ireland from 2008. The failures in the policy-making and regulatory systems have caused a critical eye on traditional ways of doing business in the political system and the public service. The paths that Ireland has followed are two. First, the constitutional amendment mechanism. It pays attention to constitutional precepts that ruler this constitutional reform, mainly articles 46 and 47. The referendum has developed a key element in this system. Ireland has developed 23 constitutional reforms nowadays. The second important element is a Constitutional Convention. This body will allow a group of randomly selected citizens to deliberate and make recommendations upon a number of areas of political reform. Many of the changes envisaged offers an space for reflection about the viability of a macro political and constitutional change strategy that the bailout require.

Shaping Presidential Powers in Hungary: Convention, Tradition and Informal Constitutional Amendments

2021 ◽  
Vol 46 (3-4) ◽  
pp. 307-320
Author(s):  
Attila Vincze
Keyword(s):  
Constitutional Court ◽  
Constitutional Change ◽  
Exact Role ◽  
Present Contribution ◽  
Constitutional Amendments ◽  
Political Actors ◽  
Fundamental Law ◽  
Constitutional System ◽  
Presidential Systems ◽  
Judicial Interpretations

Abstract There was no tradition of a republican president in Hungary before the fall of communism, and the transitory constitution of 1989 was unclear about the exact role the President should play in the constitutional system of Hungary. Some provisions even resembled those of presidential or semi-presidential systems; some ambiguities were clarified during the first two decades after the transition. Conventions, however, were established to some extent and sometimes very quickly. This period gave rise to guidelines as to how the powers of the President should be exercised. Some other powers were concretized and interpreted foremost by the Constitutional Court. These conventions and judicial interpretations formed the character of the Presidency to the extent of informal constitutional change. Some of these elements have even been incorporated into and formalized by the new Fundamental Law of Hungary. The present contribution will point out how the originally broad competencies of the President have been narrowed in the practice, and what role the Constitutional Court and political actors played in this process.

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