Abstract
In recent years, scholars have produced literature in constitutional amendments, in particular in analyzing the unamendability phenomenon and its relationship with democracy, abusive and populist constitutionalism. The study of constitutional design is of interest, in large part, because a constitution can be amended and such processes make room for the fundamental questions about legitimacy of the constitutional order, the holder and the locus of sovereignty, especially in those legal orders where a popular legitimated process of altering the constitution is entrenched. Indeed, in some legal orders “We, the People” are called to initiate and/or approve any constitutional change. In this view, the paper brings the reader alongside the “We, the People” claim, stressing, though in restrictive manner, who are “the people”, how they act and react, and when their action unveil a(n) (un)constitutional change, in order to draw citizens-led constitutional changes grounded on three keywords – populism, (un)constitutional amendments and constitutionalism. The paper is an invitation to the development of “the people” approaches in a constitutional framework that struck populism as democracy’s sentinel.
Highlights
In some legal orders “We, the People” are called to initiate and/or approve any constitutional change, but, as demonstrated, democratic constitutions undermine popular participation in such processes
Yaniv Roznai opens his remarkable book in the same spirit, explaining the meaning and importance of constitutional amendments arguing that “formal constitutional amendments remain an essential means of constitutional change and [...] raise imperative questions for constitutional theory” (Roznai (2017a), p. 2)
Constitutional change occurs in two ways, constitutionally or unconstitutionally, depending on the conceivability of constitutional amendments to modify and enrich the existing constitutional content and/or the established supreme principles
Summary
In some legal orders “We, the People” are called to initiate and/or approve any constitutional change, but, as demonstrated, democratic constitutions undermine popular participation in such processes. The transition itself states a change or an alteration by means of amendments allowing the constituent power to continue alongside the constitution it created and preserving its identity over time, until a “constitutional revolution” takes place and favours the replacement, a sort of a “new foundation”, a “reconstitution”.
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