Engineering Constitutional Change

A Comparative Perspective on Europe, Canada and the USA

Xenophon Contiades, Xenophon Contiades

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136210778
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho público

This volume provides a holistic presentation of the reality of constitutional change in 18 countries (the 15 old EU member states, Canada, Switzerland and the USA). The essays offer analysis on formal and informal constitutional amendment bringing forth the overall picture of the parallel paths constitutional change follows, in correlation to what the constitution means and how constitutional law works. To capture the patterns of constitutional change, multi-faceted parameters are explored such as the interrelations between form of government, party system, and constitutional amendment; the interplay between constitutional change and the system of constitutionality review; the role of the people, civil society, and experts in constitutional change; and the influence of international and European law and jurisprudence on constitutional reform and evolution. In the extensive final, comparative chapter, key features of each country's amendment procedures are epitomized and the mechanisms of constitutional change are explained on the basis of introducing five distinct models of constitutional change. The concept of constitutional rigidity is re-approached and broken down to a set of factual and institutional rigidities. The classification of countries within models, in accordance with the way in which operative amending mechanisms connect, leads to a succinct portrayal of different modes of constitutional change engineering.

This book will prove to be an invaluable tool for approaching constitutional revision either for theoretical or for practical purposes and will be of particular interest to students and scholars of constitutional, comparative and public law.

1 Constitutional change engineering

Xenophon Contiades

The meaning of a question is the method of answering it.

Ludwig Wittgenstein, Philosophical Remarks

On narratives of constitutional change

A new narrative has gradually been evolving, a narrative shared by constitutional literature, which focuses on the concept of constitutional change. As opposed to the less attractive technical terms “revision” and “amendment,” change corresponds to images of transformation through the perpetual interaction of formal and informal mechanisms, and suggests fluidity encompassing the correlation between political antagonism, judicial identity and the constitution. Amending procedures dictate how constitutional change is supposed to take place, and the success or failure in the accomplishment of their intended difficulty level affects the relationship between explicit and implicit changes. Still, the reality of change is determined through the impact of other factors as well, such as the structure of the political system, the effect of civil or common law tradition, the system of judicial review, and constitutional ethos.

It seems that constitutional theory is making a return to basics. Notions of sovereignty, constitutional reform and evolution, entrenchment and constitutional design are revisited. The question posed is why the issue of constitutional revision and constitutional change is becoming increasingly intriguing. The answer is multifaceted. Amending formulas are no longer perceived as clauses in hibernation remaining in sleep mode, coming out only when the amending process is initiated, but on the contrary are omnipresent, exerting continuous influence on constitutional and political theory and practice. This phenomenon is enhanced as it is apparent that states still remain the main locus of sovereignty, since supranational institutions have not absorbed state functions, and EU constitution-making did not proceed as smoothly as envisaged in the recent past.

Still, the heart of the issue lies elsewhere. Recent preoccupation with constitutional change stems from, and also marks a new era of, constitutionalism, where the existence of constitutions is regarded as a self-evident reality. In this new context the constitution, not imperiled by enemies, is demystified (and can afford to be demystified), while amending procedures can be treated as modes of adaption to changing circumstances rather than imaginary simulations of the constitutive moment. They can therefore be subjected to scrutiny with regard to their efficiency in performing the task they were designed to perform, in light of their ratio and the results they produce. Constitutional reform is neither taboo nor an extraordinary process, but part of normal constitutional life, reflecting that constitutions are no longer perceived as mystical, sacred documents but as indispensable tools used regularly and interminably. This undisputed normativity and indispensability of the constitution goes hand in hand with the necessity of adaptability to changing circumstances that include state transformation, new threats against rights, and supranational co-operation.

The need for adjustability to new requirements as a trigger for constitutional change does not automatically render the process routine. Strong conflicts regarding the allocation of powers may underlie constitutional change. Not regarded as sacrilegious anymore, formal change may signal serious reforms in the operation of the state, providing the means for resolving conflicts between political elites, the people, and the judiciary, as well as between federal states and subnational entities. In the comparative approach of engineering constitutional change, journeys of sovereignty unravel, revealing winners and losers in the incessant conflict that takes place between constitutional actors, and betraying conscious or unconscious choices between constitutionalism and democracy.

Comparative assessment of constitutional change: alternative methods

Comparative constitutional law and political science have taken very important steps in the field of constitutional change theory. Comparisons are often conducted on the basis of quantitative analysis using information such as the age and length of the constitutions under assessment, and the number of constitutional revisions that have been performed, then compiling indexes of rigidity. Several approaches are continuing the effort to explain constitutional amendment through the analysis of empirical data, an effort originated in the 1990s in the USA, while different theories and methodologies are applied to draw conclusions from such data. Criticism targeted against these methodologies stresses the danger of ignoring other, non-measurable aspects that determine the route of constitutional change. Disregarding or bypassing comparability and commonality is another potential pitfall, related to the difficulty of maintaining coherency in multi-level approaches that aim to place country-specific amendment processes in their wider constitutional, socio–political, and historical context.

This volume attempts an holistic presentation of the reality of constitutional change in 18 countries, which, despite their important differentiations, also share profound commonalities (after all, the 15 old member states of the EU along with the USA, Canada and Switzerland are the core of what is traditionally referred to as the West). Constitutions emerged in Europe and North America in the eighteenth and nineteenth century, in correlation with a specific type of state; constitutions and states becoming inescapably interrelated as historical phenomena marking the passage from feudalism to the nation state. This common background facilitates evading any misconceptions that may occur when juxtaposing constitutions that resemble each other in form or content but are applied in totally different cultural, socio–political, and legal contexts.

The 18 contributions in this volume offer analysis regarding how constitutional amendment takes place in different legal orders, by addressing the multifaceted issues set out by an outline designed to bring forth the overall picture of the parallel paths that constitutional change follows in each country, in correlation to what the constitution means and how constitutional law works. It is not mere coincidence that some contributions begin with a discussion on what the constitution is, finding it necessary before approaching constitutional change to talk about the constitution per se; in others, the weight is placed on history in order to explain constitutional evolution, while several others focus on the particularities of the political system or on the tension between the legislator and the judiciary. In that sense, this volume is not a compilation of national contributions, but hosts through a common spectrum different theories and comprehensions.

Characteristic of the varying conceptions of constitutional change, even in countries that share common understandings of constitutionalism, are several terminological issues that emerged by addressing the outline. The terms “revision” and “amendment” have different connotations in each legal order: “revision” indicates extensive constitutional makeover, whereas “amendment” indicates lesser interventions; or, “revision” meaning formal change and “amendment” either formal or informal change, while common lawyers feel much more at home with the notion of “change.” These differences were particularly apparent where scholars had to decide how to translate the term used in their own language to indicate amendment/revision. For the purposes of this volume, authors were left free to choose the terms that best corresponded to their legal culture, priority therefore being given to allowing differentiations to surface instead of pursuing uniformity.

Here follows the outline which endeavored to capture the reality of constitutional change in the examined legal orders:

• History and evolution of the amending procedure

• The amending formula: analysis and interpretation of constitutional provisions regarding constitutional revision

• The role of the people, civil society and experts in constitutional change

• Judicial review of constitutional amendments

• Informal methods of constitutional change

• Correlations between constitutional change and the system of constitutional review

• Interrelations between form of government, party system, and constitutional amendment

• The influence of international and European law and jurisprudence on constitutional reform and evolution

• Criticisms on the amendment procedure and constitutional entrenchment

• Contemporary debate on constitutional reforms

The outcome of responding to the above outline suggests that underlying any narrative of constitutional change is the relationship between constitutions and time as forged through the succession of episodic and incremental changes, while multiple constitutional actors fight over taking the lead. In case the link between the way in which change actually happens and the amending processes is missing, the analysis of constitutional change disregards the fragmentation of power and the underlying tensions over the final outcome, and so fails to capture the essence of the constitution (i.e. the allocation and delimitation of powers). Constitutional amendment seen under the prism of the intended and unintended consequences of amending formulas reveals how mechanisms of constitutional change work, exploring the perpetual confrontations taking place between constitutional lawmaker and judge, between formal and informal change, and between constitutionalism and democracy.

Modelizing constitutional change

The common outline was put together in order to guide the comparative analysis through a series of questions that attempt to grasp the essence of the way in which constitutional change is engineered. Questions are important for revealing commonalities and divergences, yet can sometimes be self-defeating by imposing discipline of thought whereas riskier approaches can lead to revealing answers. The choice of questions is crucial for the directions that thought and observation follow. The main questions employed to facilitate the comparative exploration are:

• Does the amending procedure reveal or express a specific understanding of what the constitution is?

• Is the way in which the constitution organizes political power, allocates authority and regulates fundamental rights interrelated with the amending formula?

• Do stringent and complex amending procedures cause devaluation of the constitution or lead to its mystification, and to what extent is this determined by the features of informal change?

• Do demanding amending processes nurture the living constitution or are they detrimental to it?

• Is it possible that unamendable provisions are furnished with the charm of the forbidden, becoming unspeakably desirable, symbolizing reversal?

• Is it possible for amending formulas to be irrational, and what are the criteria for assessing amending formulas?

• Does the formula achieve the goal it is designed to serve (i.e. stability, consent, consistency, continuity, adaptability, etc.)?

• Can constitutional change be considered a process of cultural development?

• How does legal culture and constitutional ethos affect the equilibrium between formal and informal change?

• Do differences between civil law and common law traditions affect modes of constitutional change?

• How does volatility of the political system relate to constitutional change?

• Is there a tendency towards less complex amending processes?

• Can the enhancement of the role of the people counterbalance the role of political elites and judges in constitutional change?

• Is the role of experts in constitutional amendment related to the dominant constitutional ethos, and how does their involvement impact the “level of rigidity”?

• Are experts necessarily allies to political elites or can they be allies of the people?

• How does the relationship between lawmaker and judge influence the route of constitutional change?

• Who has the final word in the dialogue between constitutional legislator and courts, and what are the limits of the judicial review of amendments?

• How does the formation of a common European legal culture influence constitutional change?

• How did participation in the EU and seceding sovereignty affect formal and informal change?

• What triggers the debate on future amendments?

Despite the differences in constitutional culture, political history, form of government, judicial review systems and amending formulas, the existence of important convergences came forth through comparative analysis. Constitutional theory in the countries approached seems to share similar agonies, although these agonies are faced in completely different ways. Within each legal order, there are various mechanisms of formal and informal change, operated by multiple actors. Studying mechanisms of constitutional change inevitably touches upon the whole spectrum of constitutional law and allocation of powers.

Multifarious responses to the issues raised by the above questions can be explained on the basis of models of constitutional change. The range of diversity corresponds to the existence of very distinct models. The modelization of constitutional change is based on the correlation of mechanisms and the role of actors within different political systems and constitutional orders. This addition to the comparative constitutional law toolkit provides an alternative way to approach amendment, but also to understand diverse constitutional cultures through the way in which change is effected. Once models are built, the plot thickens as it becomes possible to discern what determines the profile of constitutional change in each polity, and the traditional notion of rigidity is re-examine...