Relying on the Vibe of the Thing: The Colombian Constitutional Court's Doctrine on the Substitution of the Constitution

Abstract

The defense of substantive limits on constitutional change has mainly taken two roads. One has been to claim that certain constitutional provisions cannot ever be changed, though they might be restricted or suspended under some conditions. A second road has been to claim that, ex ante, any provision can be amended, though the constitution’s essential structure either cannot or can only be amended following a more restricted procedure. In other words, this position claims that a “normal” process of constitutional change cannot “substitute” or replace the constitution. Courts have taken part in discussions around these limits. The notion of substitution or replacement—or close relatives—has been invoked by litigants and judges in such different countries as Ireland, Italy, and India, to mention a few. In Latin America, it has been employed in politically salient decisions in the past fifteen years or so by the Colombian Constitutional Court. This paper concerns itself with this notion, and critically analyzes the Court’s invocation of it. The Court has taken pains to present the doctrine on procedural grounds concerning both the constitution’s amendment provisions and the Court’s authorization to supervise changes, and the paper reviews that attempt. Yet the doctrine also deals with substantive questions about the nature and content of the (Colombian) constitution, the activation and limits of constituent power, and judicial review in a democracy. The paper engages these questions as well. What does it mean to say a constitution—and, in particular, the Colombian constitution—cannot be substituted? What exactly is the “constitution” implicated in the analysis? Should the Constitutional Court partake in these discussions? Given both the Court’s current use of the doctrine and the renewed discussions of constituent power in the region, these are all timely questions.