unit 3 Flashcards
define constituent power
is the authority to create a constitutional order. It is foundational, extra-legal, and often linked to popular sovereignty, though it can be exercised by non-popular actors. It establishes the norms and structures of governance.
define constituted power
refers to the institutional authority operating within the constitutional framework. It is legally bound, subordinate to constituent power, and includes governing bodies like legislatures and judiciaries.
How do they relate with the notions of constitution-making and constitution-amending?
Constitution-Making uses constituent power to create a new order, while Constitution-Amending typically involves constituted power, though exceptional cases may reassert constituent power.
In essence, constituent power creates the constitution, and constituted power governs within it.
Illustrate and provide examples of democratic (or revolution-based) models of constitution-making.
Democratic Processes: Constituent power can be exercised directly (referenda) or indirectly (through representative bodies like conventions). Challenges arise when revolutionary momentum fades, leading to questions of legitimacy from the losing side. eg France and Italy
What are the ‘constitutional transitions’?
It’s the process from a form of political rule to another
How is constituent power exercised under the ‘pacted transition’ model?
Constituent power under the pacted transition model is exercised through negotiated compromises between declining and emerging powers, gradual reforms respecting legal continuity, and a blend of elite-driven agreements and public endorsement to legitimize constitutional change.
provide examples of pacted transitions
Examples of pacted transitions include Spain’s move from Francoist dictatorship to democracy, marked by negotiated reforms like the 1977 Law for Political Reform and the 1978 Constitution, and South Africa’s transition from apartheid to democracy through an interim constitution, inclusive negotiations, and the 1996 Constitution shaped by broad participation and adherence to guiding principles.
What are the distinctive aspects of constitution-making in federal constitutional systems?
Constitution-making in federal systems involves negotiating and balancing sovereignty between pre-existing political entities and a unified federal authority, shaped by historical context, dual sovereignty, power allocation, and the need for legal continuity and consensus.
Illustrate the external processes of constitution-making.
External constitution-making involves external actors guiding or imposing constitutional frameworks, as seen in post-WWII Germany and Timor-Leste, balancing legitimacy through inclusivity and expertise while potentially constraining local autonomy and democratic self-governance.
Are they necessarily diminished instances of democratic self-government?
External constitution-making can diminish democratic self-government by transferring decision-making to foreign actors, as seen in Germany (1949) and Timor-Leste (2002), though its democratic limitations may be mitigated if it fosters inclusivity, capacity-building, and legitimacy in fragile states.
Does international supervision add to or impair the legitimacy of constitutions?
International supervision in constitution-making can enhance legitimacy by promoting inclusivity, expertise, and conflict resolution but may impair it by limiting local autonomy and democratic self-government, particularly if seen as imposing external values or undermining sovereignty.
Explain the difference between constitution-making and the amendment of the constitution.
Constitution-making involves using primary constituent power to establish a new constitutional order outside the existing legal framework, while constitutional amendment employs secondary constituent power to modify the constitution within its established rules, preserving its identity.
Is the total amendment of the constitution a manifestation of constituent or constituted power?
Total constitutional amendments blur the line between constituent and constituted power, as they use procedural continuity to enact transformative changes that redefine constitutional identity, exemplified by Spain’s 1978 transition.
Illustrate the contents and rationale of the constitution-amending clauses in the constitutions of Italy
In Italy, constitutional amendments under Articles 138 and 139 require two parliamentary deliberations with a three-month interval and absolute or two-thirds majority approval, with a referendum optional unless passed by a two-thirds majority, while Article 139 prohibits altering the republican form of government.
Illustrate the contents and rationale of the constitution-amending clauses in the constitutions of France
In France, amendments under Article 89 require approval by both houses of Parliament and ratification through a referendum, unless a joint parliamentary session (Congress) approves them with a 3/5 majority, with limits on altering the republican form of government and territorial integrity during crises.
Illustrate the contents and rationale of the constitution-amending clauses in the constitutions of USA
In the United States, Article V allows constitutional amendments through a proposal by Congress with a two-thirds majority in both houses or by a constitutional convention called by two-thirds of state legislatures, followed by ratification by three-fourths of state legislatures or conventions, with limits on altering Senate equality or pre-1808 restrictions on the slave trade.
Illustrate the contents and rationale of the constitution-amending clauses in the constitutions of Germany
In Germany, Article 79 requires amendments to be approved by a two-thirds majority in both the Bundestag and Bundesrat, with eternity clauses (Article 79(3)) safeguarding federalism, human dignity, and democratic principles.
Illustrate the contents and rationale of the constitution-amending clauses in the constitutions of South Africa
In South Africa, Section 74 outlines a multi-track system for constitutional amendments, requiring a three-fourths parliamentary majority and approval from six of nine provincial delegations for fundamental principles, a two-thirds majority and provincial approval for Bill of Rights amendments, and a two-thirds parliamentary majority with potential provincial approval for other provisions, depending on their scope.
Illustrate the contents and rationale of the constitution-amending clauses in the constitutions of Spain
In Spain, Sections 167 and 168 stipulate that partial amendments require a three-fifths approval in both parliamentary houses, or a two-thirds majority in the Congress and an absolute majority in the Senate if consensus fails, while total amendments or changes altering constitutional identity, such as the monarchy or fundamental rights, require two-thirds parliamentary approvals separated by elections and ratification by referendum.
What are the ‘multi-tracks’ constitutional amendment clauses? What is their rationale?
Multi-track constitutional amendment clauses create different procedures for amending constitutional provisions, with stricter thresholds for foundational principles and more flexible processes for less critical issues, balancing stability and adaptability.
What is the function of ‘eternity clauses’?
Eternity clauses protect a constitution’s core principles by making certain provisions unamendable, ensuring that fundamental values like democracy or federalism remain intact despite political shifts, while judicial review of constitutional amendments is debated regarding its legitimacy, balancing the protection of these values against democratic sovereignty.
Is it legitimate for a constitutional court to review constitutional amendments?
The legitimacy of a constitutional court reviewing constitutional amendments depends on the legal frameworks of each country, with arguments supporting judicial review to protect fundamental principles, prevent majority tyranny, and preserve constitutional identity, while critics argue it undermines democratic sovereignty and judicial overreach.
Are informal changes of the constitution possible? In which circumstances can they be pursued by political and judicial actors?
Informal changes to a constitution occur through constitutional practice, interpretation, or political acts that deviate from formal procedures, often pursued by political and judicial actors when amendment processes are too rigid or demanding, allowing adaptation to new political realities without formal text revisions.
