Abstract
Constitutional amendment difficulty or rigidity has generated extensive literature in recent times, both conceptually and empirically. Although constitutional scholars seem divided about the importance and significance of amendment limits, there has been a proliferation of indicators and statistical analysis. In this Article, while recognizing the normative debate, we provide an empirical exploration for thirty-seven countries based on factor analysis of both formal procedural rules—usually the focus of empirical work—and substantial amendment rules—which are less developed in the quantitative literature. We discuss the existing contradictions across available indicators. Implications for the literature are derived.
Highlights
In this Article, while recognizing the normative debate, we provide an empirical exploration for thirtyseven countries based on factor analysis of both formal procedural rules—usually the focus of empirical work—and substantial amendment rules—which are less developed in the quantitative literature
ECON. 13, 89–105 (2002). 2Richard Albert, The State of the Art in Constitutional Amendment (Introduction), in THE FOUNDATIONS AND TRADITIONS OF CONSTITUTIONAL AMENDMENT 1, 12–14 (Richard Albert et al eds., 2017). 3Rosalind Dixon, Constitutional Amendment Rules: A Comparative Perspective, in COMPARATIVE CONSTITUTIONAL LAW 96 (Tom Ginsburg & Rosalind Dixon eds., 2011). In this Article, we pursue an empirical exploration of procedural amendment rules—rules that regulate the process by which a constitutional amendment is passed—and substantial amendment rules—rules that limit what can be amended
We innovate at four levels: We expand the previous empirical discussion to explicitly account for substantial amendment rules in contrast with previous empirical approaches, which have historically focused primarily, if not solely, on procedural amendment rules; we combine factor analysis—that is, rather than subjective assessments, we let variance across jurisdictions drive the indicators—with conventional regression analysis; we explicitly compare previous indicators for “amendment difficulty” in order to assess their relative importance; we explore possible explanatory variables within the sample of countries and find some relevant regularities across indicators
Summary
Most constitutional democracies share the common trait of having rigidly written constitutions, comprised of a formal entrenchment under a higher-than-ordinary rule of change. Rasch and Congleton argue that Lutz’s, and Ferejohn’s, empirical relationship between stringency and amendment rates lacks consistency.32 With this in mind, these authors state that the amendment rate is “an imperfect measure of constitutional stability” and that it “neglects other elements of change.”. According to Contiades and Fotiadou, “the constitutional and political culture are sources of factual rigidity that blocks constitutional change even when it is procedurally available.” there can be factual rigidities that block the constitutional amendment process even in the absence of explicit procedural or substantial limits.. Poland (EU) Portugal (EU) Romania (EU) Russia Serbia Slovak Rep (EU) Slovenia (EU) Spain (EU)
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