Upper Houses and Constitutional Amendment Rules. In Search of (Supra)National Paradigm(s)

Abstract

Notwithstanding recent interest in the study of constitutional amendment rules, there is very limited scholarship investigating the structure of formal amendment framework and little doctrinal debate on the role of upper houses, as sub-national units’ representatives, played in national amendment process and their capacity to strengthen the rigidity of constitutions. From an institutional framework perspective, this paper emphasizes the rules according to which the upper houses take part in constitutional revision processes, critically assessing the advantages and disadvantaged as well as the reasons of inclusion in these procedures. In this regard, firstly, it presents the theoretical rationales for their inclusion in the constitutional amendment process; secondly, it examines the amendment rules and identifies those mechanisms which gradually structure the constitutional rigidity. The analysis of amendment rules in different constitutions will allow for some remarks on the EU procedure of Treaty revision which encloses elements of rigidity. Although the EU is not a State and the Lisbon Treaty is not a Constitution, the comparison with the constitutional revision procedures of certain Member States, especially those with a decentralized structure, consents to analyze whether the mechanism of including national parliaments aggravates the Treaty amendment processes and to assess the impact on the quasi-constitutional configuration of the EU which deserves to be further developed in the perspective of the configuration of national legislatures as ‘territorial parliaments’ and their more incisive participation in the process of ‘formal European constitutional change’.