Disaggregating dismemberment: nullity, natality, and the hollowing of constitutional renewal in designed written constitutionalism

Ming-Sung Kuo

doi:10.5380/rinc.v7i3.72831

Abstract

This paper aims to rethink the idea of constitutional renewal through a dissection of Richard Albert’s ground-breaking concept of constitutional dismemberment. It is contended that under the rubric of constitutional dismemberment are two exceptional constitutional phenomena: the ought-to-be declared nullity of unconstitutional constitutional amendments and the legal unity-defying, extraconstitutional expression of what Hannah Arendt called “natality” in political action. The thesis is that attempts to tame revolutionary constitutional alteration with designed rules as to formal constitutional change as Albert’s illustrates are missing the meaning of constitution-making for a natality-driven constitutional renewal characteristically defies designed constitutional form. The concept of constitutional dismemberment is first dissected in light of Arendt’s idea of natality. With constitutional dismemberment unpacked, it is further observed that the constitution-making transmutes into the formal pronouncement of a new codified constitution in Albert’s rigid tripartite classification of constitutional changes into amendment, dismemberment, and enactment. Albert therefore inadvertently reduces constitution-making to the formal enactment of a new codified constitution with constitutional natality dismembered and constitutional renewal hollowed out. It is concluded that Albert’s formalistic conceptual framework of constitutional change reflects the centrality of comparative written constitutions in the place of comparative constitutional phenomena in current comparative constitutional studies.

Highlights

This paper aims to rethink the idea of constitutional renewal through a dissection of Richard Albert’s ground-breaking concept of constitutional dismemberment
With 70% of eligible voters casting their ballots and 70% of the ballots cast in favour, this reform only gains the support of 49% of eligible voters short of the required one-half threshold, ending up as a failed attempt at constitutional dismemberment
While an Albertine constitution only envisages a dismembered constitutional natality that is tameable by constitutional design, the meaning of constitutional renewal is hollowed out with constitution-writing taking the place of constitution-making in Constitutional Amendments.[68]

Summary

DISMEMBERMENT DISAGGREGATED

As the Indian Supreme Court’s German jurisprudence-inspired “basic structure doctrine” continues to migrate to various constitutional realms, scholarship on constitutional amendment has been embedded in a binary aptitude as connoted by the concept of “unconstitutional constitutional amendment”.16 From the “internal” perspective of the existing constitution, an amendment is either constitutional or unconstitutional, depending on its coherence with the identity of the existing one.[17]. The eventual change to the constitutional document coming out of the existing amendment rule is merely the end result of constitutional identity-altering political action, not the cause of the breakdown of constitutional identity In such a scenario, denying the resulting constitutional change the character of constitutional new beginning is far from the preservation of constitutional identity. Rather, condemning it as an unlawful constitutional dismemberment (or rather, an unconstitutional constitutional amendment) shows an intransigent attempt to restore the ousted identity, despite the new one to which natality has given rise

WHEN CONSTITUTION-MAKING BECOMES CONSTITUTION-WRITING

Findings

IN LIEU OF CONCLUSION