Unit 3 Flashcards
Constitution-making and constitutional amendments
Define ‘constituent’ and ‘constituted’ power. How do they relate with the notions of constitution-making and constitution-amending?
Distinction between constituent and constituted power was made by Emmanuel Sieyès who was a constitutional theorist during the French Revolution.
Constituent power is the power to establish constitutional order and the source of production of constitutional norms. It is by definition legally unconstrained, therefore it is often called primary or natural.
Constituted power is the set of authorities (also known as government) established by the constituent power. Constituted power is authorised to exercise public power, but it is subordinate to the constituent power and must operate within its constraints.
Constitution-making is the main expression of constituent power. It involves creation of new constitutional order, which often marks a break with the previous constitutional experience. Constitution-making can be an internal or external process. Those internal are constitutions made by monarchs, democratic processes, creation of federal states and constitutional transition. External processes are war-based model, process of decolonisation or processes under international supervision.
Constitution-amending involves modifying existing constitution. It generally is act of constituted power, because it follows the framework defined within the constitution by constituent power. However when the constitutional amendment introduces a major changes that changes the constitutional identity this power can be seen as secondary or derived constituent power.
Illustrate and provide examples of democratic (or revolution-based) models of constitution-making?
Making of constitution where the constituent power is exercised by the people. It is an act off political determination. People can exercise power either directly or indirectly.
Indirect democratic constituent power can be seen on the example of Italian constitution of 1948. Referendum was held for people to choose between monarchy or republic and simultaneously people elected their representatives into Constitutional Assembly which then drafted new constitution. However people were not called again to referendum and vote on the new Constitution which was voted only within the Constitutional Assembly.
Direct democratic constituent power can be seen on the example of French Constitution. Both constitutions of 1946 and 1958 were subject to popular referendum for them to enter into force. 1946 Constitution was drafted by Constitutional Assembly, but it was marked by political instability. Therefore 1958 Charles de Gaulle made his comeback to French politics and drafted a new constitution which strengthened the position of the President.
What are the ‘constitutional transitions’? How is constituent power exercised under the ‘pacted transition’ model? Provide examples.
Constitutional transition is constitution-making process which involves transition from authoritarian regime to democracy. This typically occurs when emerging political actors, or “outsiders”, lack the power to overthrow an authoritarian regime through revolution, but possess enough influence to destabilise it. Transition through negotiation between two groups.
Key concepts of this models are, that constituent power is exercised through a set of constituent acts, but legal continuity is retained. There’s a gradual process of reform and democratisation. Power is exercised within the pre-existing framework, therefore this model of constituent power is secondary or derived.
Example can be Spain after the death of Francisco Franco in 1975. Key roles were played by King Juan Carlos I and Prime Minister Adolfo Suárez. Most important step was the 1977 Law for Political Reform which introduced the principle of popular sovereignty, and outlined a path toward a new constitution. The new constitution, adopted in 1978, drew upon elements of Spain’s previous constitutional experiences
Another example can be one of South African Constitution of 1996. Negotiations between the ruling National Party (NP) and the African National Congress (ANC) led to the establishment of a democratically elected Constituent Assembly tasked with drafting a new constitution. To ensure a negotiated outcome, the Interim Constitution, enacted by the existing tricameral parliament, imposed certain constraints on the Constituent Assembly. These constraints included adherence to 34 constitutional principles, a requirement for a two-thirds majority vote for approval, and certification of the final constitution by the Constitutional Court. Genuine constituent power was exercised by the tricameral parliament , but the constitution-making power was exercised by Constituent Assembly.
What are the distinctive aspects of constitution-making in federal constitutional systems?
The distinctive aspect is that constituent subject are pre-existent sovereign states. Independent states decide to transfer their sovereignty to a central federal authority.
Key elements are a) shift of sovereignty (for periphery to centre) b) rupture with the past (break from the previous constitutional arrangements of the individual states) c) negotiations and compromises (process of federalisation typically involves complex negotiations and compromises among the).
Illustrate the external processes of constitution-making. Are they necessarily diminished instances of democratic self-government? Does international supervision add to or impair the legitimacy of constitution?
In external constitution-making processes a prominent role is played by an external force, these are political actors that are not native (autochthonous) to the political community in which the constitution will operate. These processes can be war-based, processes of decolonisation or constitution-making under international supervision.
Instances of self-government can be diminished, because people may feel that the constitution does not reflect their interests, but the interests of foreign constitution-makers. Constitution can lack legitimacy, because it was drafted by a power that lacks trust in the society. Constitution may not fit into the specific cultural environment, because foreign actors are not well-informed.
But foreign political actors can also help in conflict resolution, they can mediate deep-rooted conflicts existing within society. They can also provide missing expertise.
Lower legitimacy of these constitution can be regained with time through reinterpretation by domestic courts or through amendments of the constitution (again by domestic actors).
Explain the difference between constitution-making and the amendment of the constitution. Is the total amendment of the constitution a manifestation of constituent or constituted power?
Constitution-making is the creation of a new constitution. It is the exercise of constituent power.
Amendments of constitutions are generally done by the constituted power within the framework established by the constituent power in the constitution.
Total amendment of constitution can be either a manifestation of constituted or constituent power. It is constituted power if major change does not introduce a change in the constitutional identity. Amendment is major, but the constitutional identity remains unchanged. However if the major amendment changes the constitutional identity, than it is a manifestation of secondary or derived constituent power. Power was exercised within the legal framework of pre-existing constitution, but it creates a new constitutional identity.
There’s also a formal approach that views any constitutional amendment exercised within the pre-existing constitutional framework as a mere manifestation of constituted power. However this approach fails to explain the constitution-making in pacted/transition processes.
Illustrate the contents and rationale of the constitution-amending clause in the constitution of Italy.
In Italy constitutional amendments are done under Article 138. There are 2 main procedures. Both contain the Parliament, but the difference is whether there is or isn’t a popular referendum. Constitutional amendment has to be adopted by both Houses of Parliament after 2 debates with at least 3 months interval between them. If amendment is voted with simple majority referendum can be requested by 1/5 of the members of one of the Houses of Parliament, by 5 regional councils or by 500 000 citizens. If amendment is voted 2/3 majority in both Houses, there’s no possibility for referendum. Article 139 induces limit on amendments, the form of republic cannot be a matter of constitutional amendment. Interpretation of this article was extended to all fundamental principles of the constitution by Constitutional Court in 1988.
Illustrate the contents and rationale of the constitution-amending clause in the constitution of France.
In France constitutional amendments are governed by Article 89. Initiative of an amendment lies with the President and MPs. Amendment can be either approved by both Houses of Parliament and then subjected to popular referendum. Or President can convene both houses of parliament into a Congress and no referendum is held. In the joint session amendment has to be approved by a 3/5 majority. Also French Constitutions sets limitations to constitutional amendments. No amendment shall be introduced that would put the integrity of French territory into jeopardy and republic government cannot be the object of any amendment.
Illustrate the contents and rationale of the constitution-amending clause in the constitution of the USA.
In USA constitutional amendments are governed by the 5th Article. There are 4 procedures possible, two on federal and two on state level. On federal level amendment can be either proposed and voted by 2/3 majority in Congress or Constitutional Convention is convened to write and vote the constitutional amendment. After the amendment is approved on federal level states need to ratify it. That can be done either by State legislatures where 3/4 of the States need to approve, therefore at least 38 States out of 50. Or state conventions can be convened to ratify the amendment. Again 3/4 convened conventions need to ratify in order for the amendment to be valid. Congress determines which procedure will be used on the state level. Article 5 also states some limitations. Before 1808 sections of Article 1 and 4 cannot be amended and no State can be deprived of their equal suffrage in the Senate.
Illustrate the contents and rationale of the constitution-amending clause in the constitution of Germany.
In Germany amendments are governed by Article 79. Amendments have to be approved by 2/3 majority in both Bundestag and Bundesrat. No amendments that would affect the federal nature of Germany or principles laid down in Articles 1 and 20 can’t be amended.
Illustrate the contents and rationale of the constitution-amending clause in the constitution of South Africa.
South Africa has a so called multi-track amending clause defined by article 74. There are 3 different procedures. Amendments amending Section 1 of the constitution (concerning fundamental principles and constitutional identity) have to be voted by a 3/4 majority in National Assembly and by 2/3 of provinces. Amendments amending Chapter 2 of the constitution (concerning Bill of Rights) have to be voted by a 2/3 majority in National Assembly and by 2/3 provinces. All other amendments have to be voted by 2/3 majority. Ordinary amendments concerning provinces have to also be approved by 2/3 of provinces.
Illustrate the contents and rationale of the constitution-amending clause in the constitution of Spain.
Spanish constitution amending clause of Article 167 and 168 distinguishes between partial and total constitutional amendments. Ordinary constitutional amendments have to approved by a 3/5 majority of both houses of parliament; if there’s a disagreement between chambers Joint Committee can be convened that mediates requests of both chambers; if even that does not provide agreement amendment can be approved by 2/3 majority in the lower chamber of parliament and absolute majority in upper house. After the amendment is approved 1/10 members of either house can request it ti be subjected to a popular referendum. Constitutional amendments which would change the constitutional identity need to be voted by a 2/3 majority of both Houses, after the successful vote parliament is dissolved and new elections are held; newly elected parliament needs to against vote by a 2/3 majority and afterwards amendment is subjected to a popular referendum.
What are the ‘multi-tracks’ constitutional amendments? What is their rationale?
Multi-track constitution amending clause means that depending on the subject matter, the level of entrenchment is applied and different procedures are required.
Rationale might be balancing flexibility and rigidity. Making it possible to amend critical provisions, but with difficult procedures to make sure, that major changes won’t be made abruptly or that constitution amending power won’t be abused. Amendment of fundamental principles requires a lot wider consensus than the amendment of less important clauses.
What is the function of ‘eternity clauses’? Is it legitimate for a constitutional court to review constitutional amendments?
Eternity clauses in some constitutions are provisions that prohibit certain fundamental principles or aspects of the constitution from being amended or abolished, not even through constitution amendment procedures.
Not in all constitutional systems it is possible for a court to review constitutional amendments. In France Constitutional Council said in 1962 that it does not have the legislation to review constitutional amendments. In Turkey according to constitution Constitutional Court can review constitutional amendments only regarding their procedure, but no their content. However in 2008 Turkish Constitutional Court extended this provisions also to the review of the content of constitutional amendments. Both in Italy and Germany there are no provisions in Constitution that would wither approve or prohibit judicial review of constitutional amendments, therefore Constitutional Courts of both of these countries expanded its jurisdiction also on the constitutional amendments.
Are informal changes of the constitution possible? In which circumstances can they be pursued by political and judicial actors?
Informal changes are possible and are more likely to occur in a constitutional systems which constitution-amending procedures are too rigid.
Informal change of constitution can occur either through constitutional practice and conventions or by constitutional interpretation. Informal constitutional changes based on constitutional practice can be seen for example in the Britain in the shift from constitutional monarchy to parliamentary monarchy. Informal constitutional change based on judicial interpretation can be seen on the case of Marbury v. Madison in USA which introduced the judicial review of legislation. Or when Turkish Constitutional Court decided to expand its jurisdiction on the judicial review of the content of constitutional amendments.
Bruce Ackerman traced in US history some important informal constitutional changes. These occurred in so-called constitutional moments. During these times there was a political party which sustained control over the 3 branches of government and therefore was able to approve landmark legislation which had an impact on the constitution.
