Constitutional politics over (un)constitutional amendments

Constitutional politics hold a special place in Canadian political history. Demanding and difficult, the politics of the Constitution have been marked by disagreement and dissent for the entire brief history of this nation. Canada is both a multinational and territorially vast federation, thus it can only be expected that the views and demands of the diverse provinces and nations within will conflict. From this viewpoint, it seems a daunting task to unite this federation around a constitution meant to represent Canada as a harmonious and collective nation. This task has led to years of meetings concerning constitutional amendments that would properly represent and meet the demands of the provinces and Canadians as a whole, but the constitutional amendment process has proven to be extremely difficult and largely unsuccessful [...]

Download Full-text

Institutional interests and the politics of constitutional amendment

International Political Science Review ◽

10.1177/0192512119871323 ◽

2019 ◽

pp. 019251211987132

Author(s):

Anna Fruhstorfer ◽

Michael Hein

Keyword(s):

Eastern Europe ◽

Central And Eastern Europe ◽

Constitutional Amendment ◽

Significant Determinant ◽

Constitutional Amendments ◽

Constitutional Politics ◽

Main Determinant ◽

Unique Dataset

Institutional interests are often the main determinant of day-to-day politics. However, do they also matter in the more consensus-oriented field of constitutional politics? To answer this question, this article examines the success and failure of constitutional amendment drafts. We reassess a hypothesis proposed by Donald S. Lutz more than 20 years ago, according to which the initiator of an amendment is a significant determinant of its success, that is, of its passing or not passing. This study is based on a unique dataset of successful and failed constitutional amendments, covering 18 post-socialist countries in Central and Eastern Europe (1990–2014). We demonstrate that the chances of success for a given constitutional amendment are clearly driven by institutional interests: cabinet and presidential proposals have significantly higher chances of success than parliamentary and public initiatives. Additionally, success or failure also depend on the level of democracy and the rigidity of the amendment process.

Download Full-text

Rights of Minors and Constitutional Politics in the German Länder. Legal Framework, Party Strategies, and Constitutional Amendments

Perspectives on Federalism ◽

10.1515/pof-2015-0002 ◽

2015 ◽

Vol 7 (1) ◽

pp. 1-29 ◽

Cited By ~ 5

Author(s):

Astrid Lorenz

Keyword(s):

Legal Framework ◽

Political Debate ◽

Constitutional Amendments ◽

Constitutional Politics ◽

The Public ◽

Time Frequency ◽

Multilevel Systems ◽

Legal Provisions ◽

German Länder ◽

Party Strategies

Abstract The article analyses constitutional politics in the German Länder in the field of minors’ rights. Since this issue seems a purely legal matter dealt with at the federal, European and international level, we should expect similar, almost identically shaped policies at the Länder level. However, the analysis brings considerable variations of constitutional activities in this field to the fore: time, frequency, and contents of respective initiatives vary significantly in the period from 1999 to 2014. These variations were due to different party strategies, diverging party platforms and majority constellations in the Länder. The analysis also shows that the public arguments brought forward in favour of constitutional amendments refer only weakly and randomly to legal provisions and processes at other levels. The political debate supporting extended children's rights rather refers to general observations, to the specific regional context, and constitutional provisions in other Länder. At least with regard to this issue, the multi-level system did not systematically impact on constitutional politics in the Länder. It rather can be understood as an opportunity structure providing parties with multiple realms in which they can pursue their goals. Thus the study shows that federal and regional party strategies are key factors in explaining policy diffusion in multilevel systems.

Download Full-text

Judicial Self-Government as Experimental Constitutional Politics: The Case of Turkey

German Law Journal ◽

10.1017/s2071832200023208 ◽

2018 ◽

Vol 19 (7) ◽

pp. 1671-1706

Author(s):

Başak Çalı ◽

Betül Durmuş

Keyword(s):

Separation Of Powers ◽

The State ◽

Democratic Legitimacy ◽

Public Confidence ◽

State Structure ◽

Constitutional Amendments ◽

Constitutional Politics ◽

Democratic Principle ◽

Ambiguous Position

AbstractThis article traces the evolution of judicial self-government practices (JSG) in Turkey and argues that the frequent changes in JSG are part of a broader trajectory of experimental constitutional politics. The Council for Judges and Prosecutors has experienced sharp turns since its establishment in 1961, respectively in 1971, 1982, 2010, 2014 and 2017. During this period, Turkey experienced different forms of judicial councils ranging from co-option, hierarchical and executive controlled judicial council models to a more pluralistic model. The Justice Academy of Turkey has also not been immune from this experimentalism. The article discusses the endogenous relationship between these often short-lived experiments of JSG and their impacts on the independence, accountability, and legitimacy of the judiciary and public confidence in the judiciary. The article then turns to the repercussions of JSG on separation of powers and democratic principle. It focuses on the implications of the ambiguous position of the Council in the state structure for the separation of powers, and the revived debate on democratic legitimacy of JSG after the 2017 constitutional amendments.

Download Full-text

Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion

Asian Journal of Comparative Law ◽

10.1017/asjcl.2018.18 ◽

2018 ◽

Vol 13 (2) ◽

pp. 333-357 ◽

Cited By ~ 1

Author(s):

Matthew J NELSON

Keyword(s):

Essential Feature ◽

Judicial Independence ◽

Basic Structure ◽

Islamic Republic ◽

Constituent Power ◽

Constitutional Amendments ◽

Constitutional Politics ◽

Judicial Appointments ◽

Politics Of Religion ◽

State Relations

AbstractIn both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.

Download Full-text

Constitutional Politics

10.1093/oxfordhb/9780199669691.013.11 ◽

2017 ◽

Author(s):

Sylvain Brouard

Keyword(s):

Government Control ◽

French Politics ◽

Constitutional Amendments ◽

Constitutional Politics ◽

Constitutional Review ◽

French Case ◽

Promising Area ◽

To Come ◽

Comparative Theory

This chapter presents the intriguing puzzle of French constitutional politics: a spectacular increase in judicialization of French politics in the context of a flexible constitution and a politicized Constitutional Council. The state of the art is reviewed first at the international level and then within France in terms of both theory-building and empirical understanding of amending constitutions, judicialization of politics, and politicization of constitutional review. The French case, thus, provides an important case for developing comparative theory on constitutional politics and will remain a promising area of inquiry for many years to come. The chapter points to three promising areas of inquiry: the relationships between the types of government control and constitutional amendments, the patterns of judicialization, and the legitimacy of the role of constitutional review.

Download Full-text

Finding Constitutional Amendments

Constitutional Amendments ◽

10.1093/oso/9780190640484.003.0007 ◽

2019 ◽

pp. 229-260 ◽

Cited By ~ 1

Author(s):

Richard Albert

Keyword(s):

United States ◽

Great Britain ◽

Focal Point ◽

The United States ◽

Integrative Model ◽

Constitutional Amendments ◽

Constitutional Politics ◽

The World ◽

Constitutional Meaning ◽

Point Of Reference

Constitutional designers rarely ask many questions they should. How and where will the constitution indicate that it has been amended? Will it record the change at the end of the original constitution, or will the change be inserted directly into the founding text? And what about an uncodified constitution: How will it identify constitution-level changes? This chapter offers the first analysis into the options available to constitutional designers for codifying constitutional amendments. This chapter identifies and illustrates the four major models of amendment codification in the world: the appendative model in the United States, the integrative model in India, the invisible model in Ireland, and the disaggregative model in Great Britain. How and where to memorialize changes to the constitution entails implications for how interpreters of constitutional meaning will read the constitution in the course of adjudication, whether the constitution will become a focal point of reference in constitutional politics, and how intensely citizens will venerate their constitution. The way amendments are recorded is ultimately a choice about how and indeed whether a people chooses to remember its past. Today constitutional designers do not consider the consequences of amendment codification, but they should. This chapter explains why the choices involved in amendment codification concern more than mere aesthetics. This chapter considers constitutions from Canada, Great Britain, India, Ireland, Israel, Mexico, New Zealand, Norway, Saint Lucia, Spain, and the United States.

Download Full-text