Constitutional amendment and concept of constitution

Abstract

Constitutional amendment raises a number of complex legal issues related to how it can legally help to protect constitutional democracy. Those issues will receive a different answer depending on the concept of the constitution you depart from. This article will analyse the implications for constitutional amendment of a formal and a material concept of the constitution, out of the many concepts of the constitution that are available. After a critical analysis of both concepts, an alternative formal-functional approach will be proposed. This last concept of the constitution will be conceived as the better way of assessing in modern fully differentiated legal systems the theoretical implications of constitutional amendment, regarding the legally non-existing difference between constituent power and amending power, the contingency of the substantial limitations upon the amending power, the derogatory consequences of constitutional polymorphism, as well as the need of an only ex ante, but not ex post, judicial review of the constitutional amending procedure.