More flexibility in favor of constitutional stability? What breaking amendment rules in Ecuador can teach us

Abstract

Abstract Latin America has provided a fertile ground for constitutional experimentation. The Ecuadorean Constitution of 2008 purported to change the entire liberal constitutional model and replace it with one in which indigenous concepts from the Andean region are central. At the same time, the constitutionalization of the legal order was not repudiated, and a reinforced procedure for constitutional amendments was still included. It seems, however, that even an extended rights catalogue and reinforced amendment procedures could fail to induce a real paradigm change if the commitment to protect the constitution as higher law is missing. The present article seeks to show that more flexible amendment rules might foster the rule of law and stability better than those that are unrealistic or bluntly ideological, especially where the value of constitution-as-higher-law is not authentically reflected in the governed society. In these cases, flexible amendment rules could help restore trust in law’s authority and constitutional institutions, and they could also assist in guiding political actions under the guise of law, instead of surrendering them to a mere political power struggle. Building on the experience of a series of constitutional substitutions from Ecuador’s three main constitutional phases, the article strives to enrich our understanding of issues related to amendment difficulty, institutional design, and constitutional culture.